Chapter XIV Miscellaneous פרק יד: שונות
1 א

Bar Kappara expounded: Which is the small section upon which all substantive principles of Torah are contingent? "In all your ways acknowledge Him, and He will direct your paths " (Proverbs 3:6).

2 ב


3 ג

Torah Readings on Fast Days

4 ד

In the Nisan-Tammuz 5757 issue of Or ha-Mizraḥ, Rabbi Sholom Rivkin, Chief Rabbi of St. Louis, Missouri, presents an interesting query addressed to him by a resident of a home for senior citizens. The aged and infirm residents did not anticipate success in mustering the requisite quorum of persons who would refrain from food on the approaching Fast of Esther and realized they would be unable to read the Torah section designated for fast days. But, since the fast occurred on a Monday, they sought guidance with regard to whether they should proceed with the usual reading of the initial section of the forthcoming weekly portion. Rabbi Rivkin reports that, despite difficulties he had with the position, he hesitated to respond in the affirmative because of the view of R. Meir Arak, Teshuvot Imrei Yosher, II, no. 124, sec. 2, who rules that under such circumstances there should be no Torah reading. The identical question arises with some frequency in small congregations in which several worshippers are feeble or sickly. In a responsum describing such a situation, R. Abraham David Horowitz of Strasburg, Kinyan Torah be-Halakhah, I, no. 119, also finds it difficult to rule contra the decision of Imrei Yosher.1Rabbi Horowitz cites Teshuvot Maharam Shik, Oraḥ Ḥayyim, no. 290, who rules that a person who has eaten food less than the size of a dried date may be counted toward the necessary quorum for the purpose of Torah reading. He accordingly suggests that, if possible, such persons be advised to eat and drink small amounts during the early hours of the fast, with requisite intervals between each small portion of food and drink, so that Va-Yeḥal may be read. That advice contradicts the well known view of R. Chaim Soloveitchik, recorded in Ḥiddushei ha-Graḥ ve-ha-Griz al ha-Shas, no. 45, who maintains that the sick are entirely excluded from the rabbinic decree regarding fasting and that a sick person who does fast has fulfilled no miẓvah whatsoever. It follows from R. Chaim’s position that a sick person, even though he may be fasting, cannot be counted toward the requisite quorum for reading Va-Yeḥal. That view is not necesarily contradicted by Maharam Shik who addresses a situation involving, not a sick person, but persons in a locale in which cholera was prevalent. It was the accepted medical wisdom of the day that a person debilitated as the result of fasting was at an increased risk of contracting the disease. (See, for example, R. Shlomoh Kluger, Ha-Elef Lekha Shlomoh, Oraḥ Ḥayyim, no. 351.) A person who suffers from no malady but eats on a fast day in order to ward off disease, although he may certainly do so, is exempt by reason of force majeure rather than by virtue of total exclusion from the rabbinic decree. A similar distinction between a person actually ill and a person who must take prophylactic action to avert danger was made by R. Chaim in a different context. See R. Moshe Sternbuch, Mo‘adim u-Zemanim, I, no. 60. It should also be noted that, with regard to calling only a fasting person to the reading of the Torah, Mishnah Berurah 567:20 declares that a person who intends to break his fast later in the day is not considered to be fasting. Bi’ur Halakhah 565:3 makes the same observation with regard to a quorum for recitation of the anenu prayer.

5 ה

Imrei Yosher maintains that "since the reading of Va-Yeḥal was ordained [for such occasions], when there are no fasters, there is no [Torah] reading." Imrei Yosher advances another consideration based upon the comments of Teshuvot Hatam Sofer, Oraḥ Hayyim, no. 184, in support of his ruling. Hatam Sofer expresses reservations with regard to the basic premise that Va-Yeḥal is not read on public fast days in the absence of a quorum of six persons fasting. Hatam Sofer suggests that this rule may apply only to fasts voluntarily undertaken by a group of individuals but that Torah reading on a public fast day is ordained for all by virtue of rabbinic decree. Hence, argues Imrei Yosher, even though this view was not definitively held even by Hatam Sofer,2Somewhat surprising is the assertion that R. Yitzchak Ze’ev Soloveitchik reported that this was indeed the opinion of his father, R. Chaim of Brisk. It is claimed that one year, during what is described as a period of “physical weakness,” R. Chaim directed that the Fast of Gedaliah not be observed. The fast day that year occurred on a Thursday. Despite initial hesitation, R. Chaim is reported to have subsequently stated that Va-Yeḥal “could have been read.” See R. Chaim Aaron Tombak, Niḥoḥa shel Torah (New York, 5763), pp. 228f. It is not entirely clear whether R. Chaim maintained that the proper reading in such circumstances is Va-Yeḥal in full accordance with Ḥatam Sofer’s suggestion or whether he maintained that either reading would be appropriate. The latter view would be compatible with the thesis advanced by R. Naphtali Zevi Judah Berlin, Ha‘amek She’elah, Parashat Va-Yishlaḥ sec. 33. See infra, note 5. it nevertheless serves to generate significant doubt with regard to whether, in the absence of persons fasting, the appropriate reading on occasions on which the fast occurs on a Monday or Thursday is Va-Yeḥal or the weekly section. Public reading of the Torah is accompanied by prononcement of blessings. Accordingly, since the section to be read is a matter of doubt, argues Imrei Yosher, the blessings may not be pronounced for fear that they may be pronounced in vain.

6 ו

Left unexamined by Imrei Yosher is why both Torah sections should not be read in order to satisfy the doubt, but without the accompanying blessings. In a responsum devoted to an entirely different matter, R. Naphtali Zevi Judah Berlin (Netziv), Teshuvot Meshiv Davar, I, no. 16, marshals evidence showing that, as opposed to the Babylonian Talmud, the Palestinian Talmud maintains that rabbinic decree forbids any public reading of the Torah in the absence of the accompanying blessings.3Parenthetically, it should be noted that this responsum addresses an issue presented by a benevolent society in Cincinnati whose members wished to engage in such public Torah reading in conjunction with festivities marking the dedication of a new Holy Ark. Meshiv Davar declares that, even absent a formal prohibition, such public reading is “foolishness and hubris (shetut ve-gasut ruaḥ).” Cf., however, the comments of Mahari Praggi published in R. Abraham ben Mordecai ha-Levi, Ginat Veradim, Oraḥ Ḥayyim, klal 2, no. 23, as well as the response of Ginat Veradim, ibid., no. 24 and Ma’amar Mordekhai 566:5 cited by R. Ovadiah Yosef, Mi-Shi’urei Maran ha-Rashal, I, no. 26, s.v be-Ma’amar Mordekhai. Cf., also, the discussion of R. Moshe Feinstein, Iggerot Mosheh, Oraḥ Ḥayyim, II, no. 18, regarding the inclusion of a minor in a quorum for purposes of reading of the Torah. The implication of Netziv’s comment for Torah reading by women’s prayer groups is self-evident.
R. Rafael Shapiro (a son-in-law of the author of Meshiv Davar), Torat Refa’el, I, no. 2, apparently without being aware of the ruling of Meshiv Davar, similarly declares that no public reading should take place in conjunction with the dedication of a new Torah scroll. See, however, R. Gavriel Zinner, Nit‘ei Gavri’el: Hakhnasat Sefer Torah (Jerusalem, 5758), 23:1–2, notes 1–4, who cites a number of authorities who sanctioned the practice. See also ibid., Bi’urim, no. 8, as well as the citation of the practices of various communities, ibid., pp. 293–306. See also Teshuvot Divrei Yo’el, I, no. 9.

7 ז

Nevertheless, Imrei Yosher's view is contradicted by numerous other authorities. The earliest explicit reference to this question seems to be by the eighteenth-century Sephardic authority, R. Ishmael ben Abraham Isaac ha-Kohen, Teshuvot Zera Emet, Oraḥ Hayyim, no. 86, s.v. ve-gam, who asserts that, under such circumstances, the appropriate section of the weekly portion should be read. R. Betzalel Stern, Teshuvot be-Ẓel ha-Hokhmah, I, no. 2, sec. 5, infers from the comment of a much earlier work, Eliyahu Rabbah 566:4, that this position was espoused by the author of that compendium. Unlike other authorities who require only six or seven fasting persons for the reading of Va-Yeḥal, Eliyahu Rabbah asserts that the requisite quorum is ten such individuals. Nevertheless, he agrees that, for the morning reading on a fast day that occurs on a Monday or Thursday, six fasting individuals suffice "for there is no additional blessing" in supplanting the usual reading with the reading for a fast day. Rabbi Stern deduces that Eliyahu Rabbah must maintain that, absent a quorum of persons fasting, the weekly section must be read because, otherwise, there would indeed be an "additional blessing." A similar ruling is recorded by R. Abraham Argo'iti, Yerekh Ya'akov, Oraḥ Hayyim, no. 45, in the name of earlier Sephardic scholars. Pri Megadim, Oraḥ Hayyim, Mishbezot Zahav 566:7, similarly maintains that a person who is not fasting may be counted toward a quorum of ten for the purpose of reading from the Torah if the fast occurs on a Monday or Thursday.

8 ח

Imrei Yosher's position is clearly contradicted by the ruling of Sha'arei Efrayim 8:106, followed by Kaf ha-Hayyim, Oraḥ Hayyim 666:8, and R. Chaim Pelaggi, Sefer Hayyim 36:7, with regard to a congregation of fasting individuals who, on a fast day that occurred on a Monday or Thursday, read the weekly section in error. Those authorities rule that, once the incorrect reading is begun, it need not be interrupted in order to read Va-Yeḥal. Thus, they clearly maintain that the rabbinic ordinance concerning Torah reading on Monday and Thursday is not totally abrogated by virtue of the fast. Rather, rabbinic authorities simply allowed substitution of Va-Yeḥal for the usual reading.4This concept is also reflected in the ruling of Magen Avraham, Oraḥ Ḥayyim 566:8, who rules that a person who is not fasting may nevertheless be called to the reading of the Torah when the fast day occurs on a Monday or Thursday. See also R. Zevi Pesach Frank, Mikra’ei Kodesh: Ha-Yamim ha-Nora’im, I, no. 35. That analysis of the rabbinic enactment is clearly enunciated by R. Naphtali Zevi Judah Berlin, Ha'amek She'elah, Parashat Va-Yishlaḥ, sec. 33.5Ha‘amek She’elah, in stating that reading the portion of the following week is not an absolute obligation (le-ikuva), seems to advance the view that, unlike the earlier ordinance requiring consecutive readings on each Shabbat, Ezra’s ordinance recorded in Bava Kamma 82a, amplifying a still earlier edict requiring Torah reading on Monday and Thursday so that a three-day period not elapse without Torah, did not mandate the reading of any particular section. Accordingly, the reading of a section of the weekly portion is simply a customary practice. The reading of Va-Yeḥal on communal fast days is a later practice based upon Masekhet Soferim 17:7. Hence the “custom” that arose with regard to reading Va-Yeḥal on all fast days, including those that occur on Monday and Thursday, as the practice is categorized by Sha‘arei Efrayim, is readily understandable. Otherwise, it is difficult to comprehend how the earlier ordinance could have been abrogated without nullification by a Bet Din “greater in wisdom and number” and supplanted by a different practice. Cf., however, Teshuvot Zera Emet, Oraḥ Ḥayyim, no. 86, s.v. ibra, who explicitly declares that the original ordinance required reading from the portion of the following Shabbat.
The view that the Torah reading on Monday and Thursday need not necessarily be from the weekly portion is clearly enunciated in sources cited by Kaf ha-Ḥayyim, Oraḥ Ḥayyim 496:58. The accepted rule is that a resident of Erez Yisra’el who is temporarily in the Diaspora should not be called to the reading of the Torah on the second day of Yom Tov. Cf., R. Yerachmiel David Fried, Yom Tov Sheni ke-Hilkhato (Jerusalem, 5748), 9:3. Nevertheless, R. Moshe Hagiz is quoted as ruling that such an individual may be called to the Reading of the Torah for an aliyah added to the statutory minimum if the second day of the festival occurs on a Monday or Thursday in a locale that permits more than the statutory five aliyot. That ruling is ascribed to the “Rabbis of Safed” who permitted the practice on the grounds that such days are “days of Torah reading for all Israel and what difference is there between [reading from] the weekly portion or from another portion?” The author of Yom Tov Sheni ke-Hilkhato 9:2, citing R. Shlomoh Zalman Auerbach, makes the same point with regard to counting such an individual as part of a quorum of ten for purposes of reading the Torah on the second day of Sukkot or Pesaḥ that occurs on a Monday, Thursday or Shabbat.
Hence those who are exempt from fasting or who do not read Va-Yeḥal for any other reason remain obligated to read the otherwise designated section. Indeed, Sha'arei Efrayim draws attention to the fact that, as cited by Tur Shulḥan Arukh, some authorities maintain that the weekly portion must always be read in conjunction with morning services on a Monday or Thursday. Sha'arei Efrayim describes the accepted practice of substituting Va-Yeḥal as simply a custom with the result that the reading of the weekly portion suffices to satisfy the rabbinic requirement.

9 ט

Rabbi Rivkin cites R. Shabbetai Lipshitz, in his commentary on Sha'arei Efrayim, Sha'arei Raḥamim 8:67; Avodat ha-Gershuni,6The reference seems to be to Teshuvot Avodat ha-Gershuni, no. 57. If so, the citation by R. Simchah Bamberger in a separate brief responsum that was appended to Zekher Simḥah by his grandson is presented out of context. Avodat ha-Gershuni’s ruling was formulated with regard to the voluntary fasts of Bahab (Monday and Thursday) subsequent to Sukkot and Pesaḥ. In that context, Avodat ha-Gershuni states unexceptionably that, in the absence of a quorum of persons fasting, the usual section of the week should be read rather than Va-Yeḥal. The reason that one might think otherwise is presumably the consideration presented supra, note 4, i.e., that the basic ordinance allows for the reading of any Torah section. Avodat ha-Gershuni does not necessarily disagree with that thesis; his ruling may simply reflect the fact that there exists no custom to supplant the usual reading of the weekly portion on a fast that is not talmudically ordained unless there is a quorum of ten persons fasting. quoted by R. Simchah ha-Levi Bamberger, Zekher Simḥah, no. 70; and R. Abraham Chaim Noe, Shenot Hayyim (Jerusalem, 5781), chap. 21, sec. 6, who similarly espouse a position contrary to that of Imrei Yosher. Imrei Yosher's position is also rejected by R. Chaim Pinchas Luria, Meshiv Halakhah, II, no. 14. Thus, in the absence of a quorum of fasters, the weight of authority requires the reading of the weekly Torah section when the fast day occurs on a Monday or Thursday.7Yet another, but rather strange, opinion was advanced by a Tunisian scholar, R. Moshe Satrug, Yashiv Mosheh (Djerba, 5684), no. 149. Yashiv Mosheh rules that, if there is no quorum of fasters, the selection from the weekly portion should be read. However, if Va-Yeḥal is read with a proper quorum in another synagogue in the same city then, on a Monday or Thursday, all synagogues should read Va-Yeḥal in order that they not transgress the injunction against establishing separate assemblies (lo titgodedu).

10 י

She-Heḥeyanu upon Purchase of a House

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As recorded in Shulḥan Arukh, Oraḥ Hayyim 223:3, acquisition of a house or of a valued object8Arukh ha-Shulḥan 223:5 remarks that some individuals refrain from pronouncing this blessing because of lack of certainty with regard to how greatly they value the object. R. Moshe Feinstein, Iggerot Mosheh, Oraḥ Ḥayyim, III, nos. 80 and 81, takes it for granted that the blessing must be pronounced upon purchase of an automobile or of valuable furniture. Nevertheless, Pri Megadim, Mishbeẓot Zahav 223:4, reports that the prevailing custom is not to recite the blessing upon the purchase of utensils. That is also the opinion of R. Shneur Zalman of Liadi, “Seder Birkhot ha-Nehenin” 12:5, published in his siddur, Torah Or; and Ben Ish Ḥai, Shanah Rishonah, Parashat Re’eh, sec. 5. See also R. Joseph Isaac Lerner, Sefer ha-Bayit 21:4, 21:6 and 21:9. occasions the pronouncement of the she-heḥeyanu blessing ("who has kept us alive and preserved us until this day") or, if the object is acquired jointly by more than one person, the blessing ha-tov ve-ha-metiv ("who is good and bestows goodness").9Cf., however, Ḥayyei Adam 62:2, who rules that a man acquiring a family residence should recite she-heḥeyanu rather than ha-tov ve-ha-metiv even if title is held jointly with his wife because the husband is obligated to provide a domicile for his wife and children. This is also the opinion of R. Abraham Wolf Hamburg as published in R. Seligmann Ber Bamberger’s Teshuvot Yad ha-Levi, Oraḥ Ḥayyim, no. 38. Cf., however, Bi’ur Halakhah 223:3, s.v. banah and Teshuvot Yad ha-Levi, loc. cit., who disagree with Ḥayyei Adam on the grounds that the husband may satisfy his obligation by leasing a home. An interesting question pertaining to recitation of those blessings is discussed in one volume of a recently published series of collected responsa and halakhic essays.10It should be noted that Kaf ha-Ḥayyim, Oraḥ Ḥayyim, 2-3:17, citing Ben Ish Ḥai and Teshuvot ha-Rashba, I, no. 245, reports that it has become customary not to recite the blessing upon purchase of a house but that it is the practice to celebrate the purchase with a festival meal and to don a new garment on that occasion and pronounce a single she-heḥeyanu upon the house and the new garment. R. Joel Teitelbaum, Divrei Yo’el, Bereishit, p. 29, on the basis of quasi-kabbalistic reasons, opines that the she-heḥeyanu blessing should not be recited by ordinary mortals upon acquisition of a house or of new utensils.
R. Elyakim Dworkes, Bi-Shevilei ha-Halakhah, II (Jerusalem, 5752), 43–45, cites anonymous authors who, basing themselves upon Teshuvot Ḥatam Sofer, Yoreh De‘ah, no. 138, rule that it is improper to recite she-heḥeyanu upon purchase of a house in the Diaspora and attribute that position to Teshuvot ha-Rashba, I, no. 245. Examination of Teshuvot ha-Rashba reveals that this was not at all Rashba’s position. Moreover, Ḥatam Sofer expresses reservations with regard to construction of buildings in the Diaspora when such construction is “of no necessity” (le-lo ẓorekh). There is nothing in Ḥatam Sofer’s comment to indicate that either construction or purchase of a needed dwelling is other than an occasion for joy and thanksgiving.
In the fifth volume of Ẓohar (Jerusalem, 5759), edited by R. Elyakim Dworkes, R. Yitzchak Zilberstein assembles earlier sources that address the problem of whether or not the appropriate blessing should be pronounced upon the purchase of real estate that is financed by a mortgage.

12 יב

The issue was first raised by R. Chaim Pelaggi in his Teshuvot Lev Hayyim, III, no. 52. Lev Hayyim observes that the blessing was ordained as an expression of joy experienced upon acquiring an object from which a person derives pleasure. Lev Hayyim notes that incurring debt in conjunction with a purchase substantially mars the pleasure of acquisition since the purchaser is in a state of unease because of his need to satisfy the debt. Lev Hayyim's ruling is cited and endorsed by the author of the popular Sephardic compendium Kaf ha-Hayyim 223:10.

13 יג

R. Eliezer Waldenberg, Ẓiz Eli'ezer, XII, no. 19, takes issue with Lev Hayyim's ruling. Ẓiz Eli'ezer concedes that a person experiences apprehension and even distress in incurring debt. The purchaser, however, experiences mixed emotions, viz., happiness at acquiring the property and distress at incurring the debt. Similarly, although common practice is to the contrary,11Cf., R. Chaim Eleazar Shapiro, Nimukei Oraḥ Ḥayyim 223:2, who reports that “We have never heard of an individual reciting she-heḥeyanu or ha-tov ve-ha-metiv upon succeeding to an estate.” He questions the propriety of the blessing when pronounced by an onen as recorded by Shulḥan Arukh since an onen is exempt from all blessings save dayyan ha-emet. Nevertheless, he states that the practice of not reciting the appropriate blessing arose from the fact that, contrary to the comment of Magen Avraham, Oraḥ Ḥayyim 223:3 and Mishnah Berurah 223:7, the she-heḥeyanu and ha-tov ve-ha-metiv blessings are discretionary rather than mandatory. Cf. Bi’ur Halakhah 219:4, s.v. ve-ein zeh, regarding the notion of “discretionary” in this context. See also R. Simchah Bunim Liberman, Be-Shevilei Birkat ha-Gomel (Jerusalem, 5758), chap. 1, sec. 22. See also, R. Sherira Ga’on, cited by Tosafot, Sukkah 46a, and a contradictory citation by Tosafot, Menaḥot 42b; Teshuvot ha-Rashba, I, no. 245, cited by Bet Yosef, Oraḥ Ḥayyim 223; Rema, Oraḥ Ḥayyim 223:1; Mishnah Berurah 225:9 and Bi’ur Halakhah, loc. cit., as well as R. Naphtali Zevi Judah Berlin, Ha‘amek She’elah, She’iltot de-Rav Aḥa’i Ga’on, She’ilta 171:10. See also the comments of Arukh ha-Shulḥan, Oraḥ Ḥayyim 223:2 and 225:1. Hence, since the blessing appears to be both unseemly and emotionally contraindicated, recitation of the blessing on such occasions has lapsed. as recorded in Shulḥan Arukh, Oraḥ Hayyim 223:2, a son who inherits his father's estate grieves at the loss of his father but is nevertheless required to pronounce the appropriate blessing occasioned by the inheritance that devolves upon him. The son experiences mixed emotions, and indeed would happily surrender his inheritance rather than experience the death of his father, but, for purposes of blessings, each emotion is recognized separately. Thus the son is required to pronounce two separate—and disparate—blessings: dayyan ha-emet (the true judge) in acceptance of the loss and grief occasioned by the death of his father and she-heḥeyanu in acknowledging the beneficence represented by the estate to which he has succeeded.

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R. Moshe Stern, the Debreciner Rav, Teshuvot Be'er Mosheh, V, no. 68, rebuts Ẓiz Eli'ezer's argument by pointing out that death and inheritance are two entirely distinct matters, each of which gives rise to a different emotion. Although a person in such circumstances may simultaneously experience both profound sorrow and satisfaction, each of those reactions is prompted by a separate phenomenon. However, in purchasing real estate with a mortgage or a loan, it is but a single phenomenon, the acquisition of property, that gives rise to conflicting emotions. Thus, Tosafot, Sukkah 46a, rule that she-heḥeyanu is not recited at the time of circumcision because, although fulfillment of the mizvah gives rise to joy, the selfsame act also causes pain to the infant. Hence, concludes Be'er Mosheh, it cannot be said that the purchase of property encumbered by a mortgage gives rise to pleasure mandating a blessing. Be'er Mosheh, of course, accepts the premise, as did Lev Hayyim, that the she-heḥeyanu blessing pronounced upon acquisition of property reflects pleasure experienced in the acquisition. Ẓiz Eli'ezer, however, vigorously dismisses Lev Hayyim's observation that "this blessing is ordained solely because of joy of the heart" and declares that the blessing "is not contingent upon joy but rather upon… benefit." Thus, for Ẓiz Eli'ezer, the fact that the joy of acquisition is vitiated by sadness or distress presents no problem whatsoever. According to Ẓiz Eli'ezer, the she-heḥeyanu blessing is an acknowledgment of an objective benefit and the attendant emotional state is irrelevant.

15 טו

R. Joseph Shalom Eliashiv is quoted as espousing an intermediate position. Rabbi Eliashiv notes that no purchase represents an unmitigated pleasure since expenditure of funds to finance the purchase perforce represents an unwelcome diminution of liquid resources. Nevertheless, on balance, the purchase brings pleasure. Assumption of a mortgage is unwelcome in the same sense that expenditure of funds is unwelcome. Indeed, it is unwelcome precisely for the sole reason that it constitutes incurrence of an obligation for future expenditure of funds. Expenditure of funds, either present or future, does not negate the pleasure experienced in the purchase. However, rules Rabbi Eliashiv, if the purchaser has reason to suspect that he will not be able to make mortgage payments in a timely manner, which in turn will lead to loss of the property upon resultant foreclosure, the blessing should not be recited. Under such circumstances, contends Rabbi Eliashiv, the stress and anxiety engendered by the prospect of possible loss of the property mitigates the pleasure to such an extent that the blessing is not warranted.

16 טז

Rabbi Eliashiv's reported ruling against recitation of the blessing in instances of fear of foreclosure appears to this writer to be somewhat problematic. On the basis of a discussion of the Gemara, Berakhot 54a, Shulḥan Arukh, Oraḥ Hayyim 224:4, rules that a person who finds abandoned property must recite the she-heḥeyanu blessing even in circumstances in which the monarch, should he hear of the incident, will seize the property. The fear of seizure of the property by the king seems to be no less cogent than the fear of foreclosure by the creditor that is described by Rabbi Eliashiv. As explained by Rabbenu Yonah in his comments on the Rif, Berakhot 54a, and by Rambam in his Commentary on the Mishnah, loc. cit., the underlying principle is that the joy at acquiring the abandoned property necessitates a blessing and that obligation is not nullified because of fear of some future reversal of the cause of joy or benefit.

17 יז

There is yet another consideration that should be noted. The she-heḥeyanu blessing is recited at the time of acquisition only in circumstances in which benefit from the object can be derived immediately. Thus, the blessing upon purchase of a garment requiring alterations is not recited at the time of acquisition but is delayed until the first time the garment is worn. Accordingly, R. Akiva Eger, Oraḥ Hayyim 223:3, questions whether the blessing should be recited at the time of purchase of a house or whether it should be delayed until the mezuzot have been affixed since the purchaser is not permitted to live in or otherwise make use of the property until the mezuzot have been attached to the doorposts of the house. R. Akiva Eger's comment is cited by Mishnah Berurah, Sha'ar ha-Ẓiyun 223:21. The effect of R. Akiva Eger's observation is that, even when no debt is incurred, the appropriate blessing should not be recited at the time of the closing and transfer of title but delayed until the mezuzot are affixed.

18 יח

Fish or Meat at a Brit Milah Repast?

19 יט

Performance of certain mizvot, including circumcision, is traditionally accompanied by a celebratory meal.12The covenants entered into between Isaac and Abimelech and between Jacob and Laban were accompanied by festive banquets designed to demonstrate and to promote a convivial relationship between the covenanting parties. See Genesis 26:31 and 31:54. R. Yitzchak Meir Schorr, Koveẓ Bet Aharon ve-Yisra’el, Nisan-Iyar 5761, p. 114f., suggests that circumcision is similarly accompanied by a celebratory repast because of its covenantal nature. It seems to this writer that each of the miẓvot requiring a celebratory repast is imbued with a covenantal aspect and that it is for that reason that precisely those miẓvot are accompanied by a festive meal. Hokhmat Adam 149:24 emphasizes that the repast should be a meal in the halakhic sense of the term, i.e., that it must be served with bread as distinct from a collation consisting of coffee or whisky and pastries or the like. He adds that a person who can afford a proper repast but seeks to economize by offering his guests less than usual "does not act properly" and that R. Elijah of Vilna protested against such behavior.13Shitah Mekubbeẓet, Beiẓah 16a, cites Ritva in asserting that the sustenance ordained for an individual on Rosh ha-Shanah is exclusive of any expenses incurred in fulfilling a miẓvah just as it is exclusive of expenditures incurred in honoring the Sabbath and the festivals. See also R. Moshe Bunim Pirutinsky, Sefer ha-Brit 265:161.

20 כ

Hokhmat Adam strongly decries the conduct of those who fail to serve a proper meal in conjunction with a circumcision but falls short of a condemnation for failure to fulfill a statutory obligation. Indeed, the halakhic origin and status of the meal offered guests upon the occasion of a circumcision is a matter of some controversy. As recorded in Pirkei de-Rabbi Eli'ezer, chapter 29, rabbinic interpretation of the phrase "beyom higamel et Yizḥak" in the verse "and Abraham made a great feast on the day Isaac was weaned" (Genesis 21:8) establishes that Abraham made a "great banquet" on the day of his circumcision of Isaac. Although this rabbinic comment does not unequivocally establish a normative obligation, Sha'arei Teshuvah, Oraḥ Hayyim 551:33, cites one authority who maintains that the repast is "a biblical mizvah." Sefer Haredim, chapter 40, section 3, records participation in a wedding banquet or a circumcision repast in his list of positive commandments derived "from the words of Holy Writ and from the words of the scholars." Yam shel Shlomoh, Bava Kamma 7:37, similarly writes that, in contradistinction to the celebratory meal accompanying the redemption of a first-born son, the circumcision repast constitutes a mizvah and is predicated upon the verse "I rejoice over your word like one who finds abundant spoils" (Psalms 119:162). On the other hand, Teshuvot Bet Ya'akov, no. 73, declares that the status of the repast is rabbinic in nature while Bi'ur ha-Gra, Oraḥ Hayyim 640:6, states that the repast "is not a biblical mizvah and there is no obligation of rejoicing."14See Sefer ha-Brit 265:159. Magen Avraham, Oraḥ Hayyim 640:13, interprets Teshuvot Maharik, no. 178, as asserting that the meal represents "a mere custom."15For a conflicting interpretation of Teshuvot Maharik see Eliyahu Rabbah 640:19. See also R. Shimon Konitz, Ot Brit 165:14. Elsewhere, Oraḥ Hayyim 546:5, Magen Avraham declares that a circumcision repast does not entail "rejoicing." However, Mordekhai, Mo'ed Katan, sec. 891, asserts that a mourner may not partake of a meal served in conjunction with a circumcision precisely because it involves rejoicing. That contention is based upon the interpretation by the Gemara, Shabbat 130a and Megillah 16b, of the verse "I rejoice in Your word as one who finds great spoil" (Psalms 119:162) as a reference to circumcision.

21 כא

At present, it has become the practice to serve the celebratory meal early in the day immediately following the circumcision. At that early hour many people find it difficult to eat a heavy meal and hence the repast often features fish rather than meat. The question of whether the circumcision meal must include meat or whether fish or dairy dishes may be served in satisfying the requirement is posed by R. Alexander Eliezer Knopfler in the Tammuz 5758 issue of Or Yisra'el, published by Machon Or Yisra'el located in Monsey, New York. Responses by R. Abraham David Horowitz of Strasburg, R. Yitzchak Ya'akov Neiman of Montreal, R. Joseph Lieberman of Jerusalem, R. Gavriel Zinner of Brooklyn and R. Yochanan ha-Levi Woszner of New Square appear in the same issue. A brief comment by R. Yitzchak Tessler of Monsey appears in the Tishri 5759 issue of the same journal. The topic is also addressed by R. Elyakim Dworkes, Be-Shevilei ha-Halakhah, II (Jerusalem, 5752) as well as in his Be-Shevilei ha-Parashah (Jerusalem, 5762), Parashat Va-Yera. However, apart from additional bibliographic sources and several interesting anecdotal tidbits, those responses add little to the earlier succinct but comprehensive treatment of this topic by R. Moshe Bunim Pirutinsky included in his encyclopedic work on the laws of circumcision, Sefer ha-Brit (New York, 5733), 265:162. Many of the considerations and sources also pertain to the proper mode of satisfying the requirement of serving a festive meal in conjunction with fulfillment of other mizvot, particularly with the celebratory meals served during the post-nuptial week.

22 כב

The question has its roots in the issue of whether or not there exists a requirement for eating meat in conjunction with the Yom Tov meal.16That question is more fully discussed in this writer’s Contemporary Halakhic Problems, III (New York, 1989), 246–256. Cf. also R. Moshe Sternbuch, Mo‘adim u-Zemanim, VIII, no. 111. As recorded by the Gemara, Pesaḥim 109a, during the period in which sacrifices were offered, the commandment to "rejoice before the Lord your God" (Deuteronomy 27:7) was fulfilled by males in partaking of the meat of peace-offerings to which reference is made in that verse. Tosafot, Yoma 3a, and Rabbenu Nissim, Sukkah 42b, maintain that, even during the days of the Temple, eating meat on Yom Tov was not an absolute requirement; rather, as characterized by Rabbenu Nissim, eating meat was merely the optimal mode of fulfilling the obligation. Citing a further statement of the Gemara, Pesaḥim 109a, Ritva, Kiddushin 3b, and Teshuvot Rashbash, no. 176, rule that, following the destruction of the Temple, "there is no rejoicing other than with wine."17Rif, Pesaḥim 109a, and Rosh, Pesaḥim 10:22, fail to mention a need for partaking of meat and record only the statement found in Pesaḥim 109a with regard to wine. Magen Avraham, Oraḥ Ḥayyim 249:6, cites the opinion of Levush to the effect that, subsequent to the destruction of the Temple, meat is not required. Similarly, in a comment included in the glosses of Ḥatam Sofer to Shulḥan Arukh, Magen Avraham, Oraḥ Ḥayyim 249:6, R. Abraham Samuel Benjamin Sofer rules that meat is not a necessary condition of “rejoicing” subsequent to the destruction of the Temple. This also appears to be the view of Sha’agat Aryeh, no. 65. On the other hand, Rambam, Sefer ha-Mizvot, mizvot aseh, no. 54 and Mishneh Torah, Hilkhot Yom Tov 6:18, followed by Tur Shulḥan Arukh, Oraḥ Hayyim 529, regards the eating of meat on Yom Tov as mandatory even in our day.18Rambam, Hilkhot Megillah 2:15, similarly rules that the obligation with regard to the Purim repast can be fulfilled only with meat. Among latter-day authorities, Magen Avraham, Oraḥ Hayyim 696:15, states that, subsequent to the destruction of the Temple, there is no obligation to eat meat on festivals.19See also Bet Yosef, Oraḥ Ḥayyim 529. Mishnah Berurah 529:2, Bi’ur Halakhah, s.v., keiẓad, states that the eating of meat on Yom Tov in our day is not mandatory but that it nevertheless constitutes fulfillment of a miẓvah. That statement is, however, contradicted by two other comments of the same authority, Magen Avraham, Oraḥ Hayyim 249:6 and Oraḥ Hayyim 529:3, in which he affirms the existence of such an obligation even in our day.20For an attempt to resolve that contradiction see Darkei Teshuvah, Yoreh De‘ah 89:19 and R. Chaim Eleazar Shapiro, Nimukei Oraḥ Ḥayyim 529:2. See also R. Jacob Ettlinger, Arukh la-Ner, Sukkah 42b; Darkei Teshuvah 89:19; and R. Ovadiah Yosef, Yeḥaveh Da‘at, VI, no. 33.

23 כג

Yam shel Shlomoh, Beizah 2:5, develops the thesis that every joyous repast requires meat but that, subsequent to the destruction of the Temple, there is an additional requirement to drink wine in order to dispel melancholy. Magen Avraham, Oraḥ Hayyim 249:6, cites Maharam of Lublin who maintains that the "mizvah of rejoicing [on the occasion] of a circumcision cannot be fulfilled with dairy dishes."21Cf., however, Magen Avraham 151:5, who, in a different context, remarks that the requirement of a se‘udat miẓvah can be fulfilled with “bread and legumes.” R. Jacob Emden, Migdal Oz, naḥal 9, sec. 17:3, declares that both meat and wine must be served at a se'udat mizvah.22Tosafot Ḥadashim, Sanhedrin 8:2, also indicate that a se‘udat miẓvah requires both meat and wine. Migdal Oz comments that a banquet is termed a "mishteh," as in Genesis 21:8, because of the drink that is served. He assumes that the noun "mishteh" is derived from the verb "shatoh," meaning "to drink." Migdal Oz finds an allusion to partaking of meat in particular at a circumcision repast in Psalms 50:5 which he renders as "those who enter into a covenant with Me by slaughter."

24 כד

Torat Hayyim, Oraḥ Hayyim 551:26, draws attention to the ruling of Rema, Oraḥ Hayyim 551:10, to the effect that during the week in which the ninth of Av occurs no more than ten persons are permitted to eat meat or drink wine on the occasion of a se'udat mizvah. Torat Hayyim argues that, were it possible to satisfy the requirements of a se'udat mizvah in some other fashion, it would not be necessary to modify the restriction against eating meat during the period of mourning even to the extent of permitting a bare quorum of ten to partake of meat. The clear implication is that Rema regards the eating of meat as intrinsic to the nature of a se'udat mizvah.

25 כה

The compiler of Zemirot Divrei Yo'el (New York, 5750), Brit Milah, sec. 205, reports that the late Satmarer Rebbe, Rabbi Joel Teitelbaum, was once present at a brit at which dairy food was served. In answer to the Satmarer Rebbe's query with regard to the lack of meat the father informed him that he could not afford the additional expense of a meat meal. The Satmarer Rebbe is reported to have responded that, had he been aware of the need, he would himself have provided sufficient funds for "a complete meal of fish and meat."23See also R. Meir Arak, Minḥat Pittim, Yoreh De‘ah 265:12, and R. Abraham Pietrovsky, Piskei Teshuvah, no. 194, who rule that meat of an animal must be served at a circumcision repast.

26 כו

R. Shimon Konitz, Ot Brit 265:14, indicates that the practice of serving dairy dishes in conjunction with a circumcision developed on the basis of reliance upon the position of Rif and Rosh24See supra, note 17. who maintain that, subsequent to the destruction of the Temple, meat is not integral to the obligation of rejoicing. Ot Brit, however, does insist that the drinking of wine is obligatory on such occasions. This is also the position of R. Abraham Anshel Grunwald, Zokher ha-Brit 25:9.

27 כז

The Gemara, Ta'anit 30a, declares that salted meat may be eaten on the day preceding the ninth of Av on the grounds that partaking of preserved meat does not give rise to "rejoicing." It would then follow that, for purposes of a se'udat mizvah, delicatessen is no more appropriate than are dairy dishes. However, Tosafot, ad locum, declare that "in our times," since we are accustomed to eat meat that has been preserved for a lengthy period of time, such meat is prohibited in the period preceding the ninth of Av. Accordingly, notes Rabbi Pirutinsky, "perhaps" such meat may appropriately be served at a brit or other se'udat mizvah.25It should be noted that Magen Avraham, Oraḥ Ḥayyim 552:2, rules that eating fish also causes rejoicing and hence rules that fish may not be eaten on the day preceding the ninth of Av. Accepting the point made by Rabbi Pirutinsky, it would then follow that fish may satisfy the requirement for “rejoicing” in conjunction with a se‘udat miẓvah. See also R. Samuel ha-Levi Woszner, Teshuvot Shevet ha-Levi, III, no. 18, sec. 2.

28 כח

The Gemara, Haggigah 8a, declares that the meat of fowl may not be used to satisfy the requirement of the Yom Tov repast. Two separate opinions are adduced by the Gemara in support of that exclusion. The first is based upon rabbinic exegesis establishing that only meat of a species from which the festival sacrifice may be brought can be used to satisfy the obligation of rejoicing. The second opinion, recorded in the name of Rav Ashi, declares simply that there is no "rejoicing" in the consumption of the meat of fowl.26See R. Judah Nagar, Mo‘adei ha-Shem, p. 132b, who rules that for this reason the obligation with regard to the Purim repast cannot be fulfilled by eating fowl. As declared in the Book of Esther 9:22, Purim is a day of “feasting and joy.” Ḥatam Sofer, Ḥullin 83a and Ḥoshen Mishpat 199:3; Teshuvot Bet Ya‘akov, no. 73; and Teshuvot Dvar Mosheh, no. 47 rule that the Purim obligation can be fulfilled only by eating meat. See also Nimukei Oraḥ Ḥayyim 695: 2. This requirement seems to be explicitly stated by Rambam, Hilkhot Megillah 4:15. See R. Moshe Sternbuch, Mo‘adim u-Zemanim, II, no. 190. Cf., Magen Avraham, Oraḥ Ḥayyim 696:15. See also R. Meir Brandsdorfer, Kneh Bosem, no. 102, regarding eating meat on Purim by a woman prior to her immersion in a mikveh on the evening following Purim. According to Rabbi Pirutansky’s thesis whether or not the meat of fowl can be utilized in fulfilling the obligation of rejoicing on Purim is dependent upon which of the two opinions expressed in Ḥaggigah 8a is regarded as normative. Cf., however, Mo‘adim u-Zemanim, VII, no. 112, who asserts that partaking of chicken satisfies the obligation of “rejoicing” at a wedding repast. Rabbi Pirutinsky insightfully notes that, according to the first opinion, there is no reason to assume that partaking of fowl does not engender happiness and rejoicing; fowl are excluded from use in fulfilling the Yom Tov obligation for an entirely different reason having no bearing upon utilization of fowl in conjunction with a se'udat mizvah.27This analysis was actually advanced earlier by Brit Avot 265:14. However, according to the second opinion, fowl do not serve to generate happiness or rejoicing28The second opinion to the effect that fowl do not engender rejoicing is apparently accepted as normative by Mordekhai, Ta‘anit, sec. 639. This is also the view of Ḥavvot Ya’ir, no. 178. and hence are no different from dairy dishes insofar as a se'udat mizvah is concerned.29A strange and questionable anecdote is reported by Rabbi Gavriel Zinner in his contribution to Or Yisra’el. Rabbi Zinner reports that each of the children of a certain person died in infancy. Upon being informed of the tragic situation, the Belzer Rebbe is reported to have asked the father if he had served “meat of an animal” at the brit of his children. Rabbi Zinner provides no substantiation for the inferred causal connection. In a rather different vein, Rabbi Yochanan Woszner cites anonymous sources to the effect that offering meat at a brit serves to assure that the child will develop properly in the study of Torah and in divine service. In a footnote to Zemirot Divrei Yo’el, Brit Milah, sec. 205, the editor similarly reports that the Apter Rav is known to have declared that serving a dairy meal in conjunction with a circumcision will jeopardize the child’s ability to become proficient in Torah study. The original source of the latter anecdote seems to be R. Shlomoh Aharon Auerbach, Taharat ha-Nefesh (Czemowitz, 5633), 60:123 from which it appears that the Apter Rav’s comment was uttered in a jocular vein. See R. Shabbetai Lipshitz, Brit Avot (Munkacs, 5658), chap. 13, sec. 1.

29 כט

These various sources notwithstanding, serving meat at a brit was far from a universal practice even in previous generations. R. Moshe Sofer, Teshuvot Hatam Sofer, Oraḥ Hayyim, no. 69, was consulted with regard to the propriety of serving dairy dishes at a brit milah performed on the Sabbath. The inquiry was prompted by an interesting set of circumstances. The community in which the brit was to be performed regularly conducted the morning service at an early hour in order to complete the service before expiration of the period in which the shema must be recited. They then assembled again later in the morning for the musaf service. The issue was whether or not it was appropriate to partake of a meal prior to recitation of the musaf service. The interlocutors preferred to serve the se'udat mizvah at an early hour because they would be expected to present "fish and meat" at a meal served on Shabbat at a later hour and they did not wish to incur that expense. Hatam Sofer permitted the practice precisely because only dairy food was to be served, Hatam Sofer ruled that a meal featuring only dairy dishes does not constitute the type of meal prohibited before musaf even when those foods are accompanied by bread.30Cf., the general rule recorded in Shulḥan Arukh, Oraḥ Ḥayyim 286:3, to the effect that the maximum quantity of bread that may be eaten prior to musaf is no more than the equivalent of the size of an egg. See also R. Jacob Tannenbaum, Teshuvot Naharei Afarsemon, Oraḥ Ḥayyim, no. 29 as well as Likkutei He‘arot al Sifrei Teshuvot Ḥatam Sofer, Oraḥ Ḥayyim 69:3. He also stipulated that wine not be served. It is thus evident that Hatam Sofer did not regard either meat or wine as de rigeur at a se'udat mizvah.

30 ל

There are also reports in a number of sources, including Brit Avot in the name of Erez ha-Hayyim, Yoreh De'ah, p. 95, as well as Zokher ha-Brit, Hilkhot Milah 25:7, indicating that R. Nissim Azulai, author of Shulḥan ha-Tahor al Taryag Mizvot, promulgated a formal edict in Safed forbidding the presentation of foods other than fish at the repast served in conjunction with a brit. His stated reason was a desire to prevent embarrassment of those who could not afford more expensive dishes.

31 לא

These authorities may have relied upon the position of the decisors who maintain that, in our day, meat is not a sine qua non of "rejoicing." However, it is unlikely that this was the rationale underlying Hatam Sofer's ruling since he also dispenses with the requirement regarding the drinking of wine. Alternatively, it may be the case that these authorities maintained that "rejoicing" is not a concomitant of the repast accompanying a circumcision. Hatam Sofer's disciple, R. Moshe Schick, Teshuvot Maharam Shik, Yoreh De'ah, no. 366, citing Magen Avraham, Oraḥ Hayyim 546:5, adduces the latter consideration as an apologia (limmud zekhut) for those who serve dairy dishes rather than meat on such occasions.

32 לב

As noted earlier, the practice of serving a festive meal in conjunction with a brit is derived from the verse "And Abraham made a great feast on the day that Isaac was weaned" (Genesis 21:8). Pirkei de-Rabbi Eli'ezer understands the Hebrew "higamel" (literally: he was weaned) as a combination of the letters "heh" (having the numerical equivalent of five) and "gimmel" (having the numerical equivalent of three) and the word "mal" (meaning "he circumcised") which renders the entire verse as "And Abraham made a great feast on the day 'heh gimmel' (having the numerical equivalent of eight) on which he circumcised Isaac." That comment is cited by Tosafot, Shabbat 130a, s.v. sas anokhi. Similar statements regarding a festive meal in conjunction with a brit are found in Midrash Tehillim, no. 112, and Yalkut Shim'oni, Parashat Lekh Lekha, no. 81. Indeed, the Gemara, Ketubot 8a, declares that inclusion of the phrase "Let us praise our God in whose habitation there is joy" in conjunction with recitation of Grace after Meals would have been required on such occasions if not for the fact that the circumcised child experiences pain.31See also additional sources cited by Sefer ha-Brit 265:158.

33 לג

Although the point is not made explicitly in earlier sources, it seems to this writer that, unlike the requirement of "rejoicing" on Yom Tov, which is obligatory, the festive repast accompanying fulfillment of mizvot such as circumcision and redemption of the first-born constitute a "mizvah kiyyumit" rather than a "mizvah ḥiyyuvit," i.e., one who participates in such a repast fulfills a mizvah but nevertheless the repast is not mandatory in nature.32Cf., however, Zokher ha-Brit 25:8, who censures those who omit the repast and criticizes their lack of ideological commitment. This thesis is formulated by Shulḥan Gevoha, Yoreh De'ah 265:12, and accounts for the terminology employed by Shulḥan Arukh, Yoreh De'ah 265:12, in declaring, "It is customary to serve a meal on the day of the circumcision" as well as for the willingness of the authorities cited earlier in this discussion to rely upon permissive views with regard to the requirements for the repast.

34 לד

Burial of a Non-Jew in a Jewish Cemetery

35 לה

The influx of Russian immigrants to the State of Israel during recent years has given rise to a spate of heretofore rare halakhic problems. It is now conceded even by Israeli government officials that a significant proportion of those immigrants are not Jews and have no credible claim to be recognized as Jews. It is also beyond dispute that those immigrants are loyal citizens of the State of Israel, that they wish to identify themselves with the Jewish people and that many of them have served with distinction in the Israeli armed forces. Some have perished in the course of fulfilling military duties or as a result of terrorist activity. There have been reports of a number of instances in which family members have quite understandably sought to have such an individual buried in a Jewish cemetery, only to be rebuffed on the grounds that the departed relative was not a Jew. In one well-publicized case, the deceased was denied burial in a Jewish cemetery because he was not a Jew and denied burial in a Russian Orthodox cemetery because he was not a Christian.

36 לו

This vexing problem becomes even more exacerbated when the deceased is a soldier killed in the course of military duty and the family seeks burial in a military cemetery. The argument that a person who sacrifices his life for the security of the State of Israel deserves to be buried in one of the military cemeteries strikes a resonant emotional chord. The halakhic aspects of that dilemma are surveyed by Rabbi Abraham Avidan, a former Rosh Yeshivah of Yeshivat Sha'alvim who presently serves as assistant to the Chief Chaplain of the Israeli Armed Forces. That discussion is presented in a contribution to the first volume of Oz (Sha'alvim, 5754), a publication devoted to halakhic issues pertaining to the "armed forces, society, and security."

37 לז

The Gemara, Gittin 61a, posits an obligation, at least under some conditions, to support the gentile poor, to assist the gentile sick and to inter the gentile dead in order to foster amicable and neighborly relations. That obligation does not, however, entail burial in a Jewish cemetery. Indeed, Rashi, in his commentary ad locum, emphasizes that the Gemara does not refer to burial in a Jewish cemetery. Ruth, in declaring her desire to join Naomi as a member of the Jewish faith declares, "… where you shall die, I shall die, and there will I be buried" (Ruth 1:17). This statement reflects Ruth's awareness that burial in Jewish cemeteries is reserved to Jews.33R. Shlomoh Kluger, Teshuvot Tuv Ta‘am va-Da‘at, Mahadura Telitai’i, II, no. 253, adds that, in declaring “if aught but death shall part you and me” (Ruth 1:17), Ruth was referring to her status should she not convert, i.e., that she would remain with Naomi in any event but, were she not to convert, they would be separated in death since a Jew and a gentile cannot be buried together.

38 לח

The prohibition against burial of a non-Jew in a Jewish cemetery is based upon a more general prohibition against burial of individuals of disparate degrees of religiosity in close proximity one to another.34For a discussion of exhumation of a Jew buried in a non-Jewish cemetery, see R. Judah Asad, Teshuvot Yehudah Ya‘aleh, Yoreh De‘ah, no. 358, and R. Yechiel Ya’akov Weinberg, Seridei Esh, III, no. 101. See also Teshuvot Ḥatam Sofer, Yoreh De‘ah, no. 341, s.v. ibra, who rules, that a wicked person who has been buried next to a righteous individual should not be disinterred since his transgressions may have been expiated. The inference to be drawn from that discussion is that a Jew buried in a non-Jewish cemetery should be exhumed. Thus, Shulḥan Arukh, Yoreh De'ah 362:5, rules that, not only is it prohibited to bury a wicked person next to a righteous individual, but it is also forbidden to inter a merely "righteous" individual next to a person of "extraordinary piety." Teshuvot Hatam Sofer, Yoreh De'ah, no. 341, cites Rashi, Sanhedrin 46a, in establishing that this stricture has the status of a biblical commandment in the nature of a halakhah le-Mosheh mi-Sinai, a law transmitted orally to Moses at Sinai.

39 לט

Rabbi Abraham I. Kook, Da'at Kohen, no. 201, explains that it is not proper to bury non-Jews in a Jewish cemetery for two reasons: 1) Individuals of disparate spiritual attainments, e.g., a righteous person and a wicked individual, may not be buried together. 2) Shiltei ha-Gibborim, in his commentary on the sixth chapter of Sanhedrin, asserts that cemeteries are imbued with the sanctity of synagogues and hence may be used solely for their designated purpose, viz., burial of Jewish bodies.35Cf., however, R. Malkiel Zevi Tennenbaum, Teshuvot Divrei Malki’el, II, no. 67, sec. 16, and R. Yechiel Michal Tucatzinsky, Gesher ha-Ḥayyim (Jerusalem 5720), II, chap. 4, sec. 2. No other benefit may be derived from consecrated ground.36R. Abraham I. Kook, Da‘at Kohen, no. 201, asserts that subsequent to interment of the first body the entire area designated as a burial ground can be used for no other purpose. There is, however, considerable controversy with regard to whether the sanctity of a synagogue is biblical or rabbinic in nature.37See Sedei Ḥemed, Kellalim, Ma‘arekhet Bet, sec. 43 and Encyclopedia Talmudit, III, 194. If the latter is the case, it follows that the second prohibition against interring a non-Jew in a Jewish cemetery is rabbinic rather than biblical.

40 מ

The distinction in the severity of these two prohibitions opens the door to a possible amelioration of the problem earlier described. Baḥ, Yoreh De'ah 151, s.v. asur, remarks that "Although there is no doubt that a gentile may not be buried next to a Jew, nevertheless, if gentiles are found murdered together with a Jew, they may be buried in a Jewish burial ground together with the dead of Israel in a single courtyard because of the paths of peace (darkei shalom)." R. David Zevi Hoffmann, Teshuvot Melammed le-Ho'il, Yoreh De'ah, no. 129, draws the obvious implication from the words of Baḥ, namely, that a Jew or a non-Jew may not be buried side by side but that, at least in the circumstances described by Baḥ, they may be buried in the same general area.

41 מא

The problem that remains is two-fold in nature: 1) Why is it ordinarily not permissible to bury a Jew with a non-Jew in a common courtyard? 2) If such interment is ordinarily forbidden, why is the prohibition suspended for purposes of promoting good relations?

42 מב

Rabbi Avidan explains that the matter is readily understood on the basis of the two separate prohibitions posited by Rabbi Kook. The biblical prohibition is limited to burial of a Jew and a gentile in close proximity to one another. That prohibition is not suspended even to promote the "paths of peace." Burial in the same courtyard, i.e. in the same cemetery, but at some distance from one another, is prohibited by virtue of the fact that the cemetery is consecrated ground. That prohibition, however, declares Da'at Kohen, is rabbinic in nature and is suspended in the interests of darkei shalom. This explanation is, of course, predicated on the assumption that Baḥ maintains that the sanctity associated with cermetery grounds is rabbinic in nature.

43 מג

Gilyon Maharsha, Yoreh De'ah 345:4, rules that the distance separating the grave of a righteous person from the grave of a wicked individual must be eight ells. However, Rabbi Shlomoh Kluger, Teshuvot Tuv Ta'am va-Da'at, Mahadura Telitai'i, II, no. 253, requires that a fence be erected to separate the graves. In support of that position, Tuv Ta'am va-Da'at observes that the Gemara, Sanhedrin 47a, reports that separate cemeteries were established for different categories of persons executed for capital trespasses. Apparently, then, mere separation does not suffice to separate a person guilty of a more serious misdeed from one guilty of a less serious infraction; rather, the separation must be in the form of a physical barrier. Tuv Ta'am va-Da'at also cites the verse "and the curtain shall separate unto you between the holy and the holy of holies" (Exodus 27:33) as indicating that, when "separation" is required, mere physical separation is not sufficient but that the separation must be in the form of a physical barrier. Accordingly, if a physical barrier is required between the "holy" and the "holy of holies," a fortiori, a physical barrier must be required in separating the wicked from the righteous. Da'at Kohen similarly requires that a fence be erected between Jewish graves and non-Jewish graves. Da'at Kohen, however, advances a far more prosaic reason for erection of a fence, viz., in the absence of a fence clearly demarcating the non-Jewish section, it is possible that, with the passage of time, a non-Jew will be buried within the prohibited distance of eight ells from a Jewish grave.

44 מד

On the basis of the ruling of Baḥ, there are grounds for permitting non-Jews to be buried within the confines of Jewish cemeteries despite the fact that the entire cemetery, including areas in which no body has yet been buried, is consecrated ground. However, since the entire cemetery is consecrated ground such interment may be permitted only when necessary to avoid enmity or ill-feeling. In light of the rulings of Tuv Ta'am va-Da'at and Da'at Kohen, the non-Jewish graves should be distanced eight ells from the area of Jewish graves and should be separated from Jewish graves by a fence ten cubits in height.

45 מה

However, as Da'at Kohen himself states, the optimum solution would be, at the time of consecration of any new cemetery, to designate an area to be used for the burial of non-Jews and to surround that area with a fence.38American rabbis would be well advised to follow the same procedure in the consecration of new cemeteries by their synagogues. From time to time, rabbis are confronted with requests for the interment of individuals who have converted to Judaism under non-Orthodox auspices. Since such conversions are invalid, those persons may not be buried in a Jewish cemetery. Proper designation of a separate and separated section would enable the rabbi to offer an acceptable alternative. Since the non-Jewish area is ab initio not consecrated for Jewish burial, it will never be endowed with the sanctity of a synagogue and hence, with proper separation, non-Jews may be interred in such an area without qualm.