There Are No Three Weeks – A Mekori Perspective

[Note: The below is for information purposes only, as is everything on this site. The decision to act upon any of it or not is the personal decision of the reader and any details regarding the observance of any halakhah – especially those laws which are intricate, complicated, and/or severe – should be discussed with a competent rav.]

The Three Weeks

Today is the 18th day of Tammuz, and most Jews are fasting from sun-up until sundown. Since the 17th, the usual day was yesterday – on Shabbat, when it is forbidden to fast – the observance was moved to today. As many know, Tzom Tammuz begins a period of time that many refer to as “The Three Weeks” which lasts until Tisha Be-Av (the ninth of the month of Av), the traditional commemoration of the destruction of both Temples, as well as a host of other tragedies which occurred in Jewish history.

Although the observance of this period of time is understood by the Haredi-Hasidic world – and even the mainstream orthodox and Modern Orthodox – as being an obvious fact of Jewish law, the truth is that it is no such thing. Like many observances that have developed over the course of the current long exile, the observances of the “Three Weeks” have no basis in the words of Hazal and are a bundle of para-halakhic customs which have ultimately led, in certain cases, to the violation of actual halakhot. Stemming from an ascetic Ashkenazic practice, most Jews refrain from shaving, trimming, haircuts, listening to music, purchasing new items (especially clothing), swimming, conducting weddings, and some even refrain from bathing during this time (although most who do so usually only abstain specifically between rosh hodesh Av and Tisha be-Av, which is referred to as “The Nine Days,” as will be explained below).

The “Three Weeks” are also known as the time of bein ha-metzarim (“between the narrows”), an expression and designation that arises from an alternate explanation of Eikhah 1:3, “…all of her pursuers overtook her within the straits (ben ha-metzarim)” in the Midrash Eikhah Rabbah (1:29). “Within the straits,” says the Midrash, are the days between the 17th of Tammuz and the 9th of Av. But it wasn’t until the 14th century Austro-Hungarian rabbi, Isaac Mi-Tirna (or, Tyrnau), in his Sefer HaMinhagim that the practices of the “Three Weeks” were recorded. This work is later cited by the Rema in the Shulhan Arukh (Orah Hayim 551:1,2,4, and 10), along with a similar work by the Maharil, as the basis of the European customs observed during this time.

But an abstention for such an extended period of time from haircuts, shaving, trimming the beard and mustache, as well as bathing and laundering clothes, ends up blatantly impinging on proper kevod Shabbat. Many Haredi/Hasidic Jews enter into Shabbat during this time unkempt, unpresentable, and emitting a foul odor, the result of refusing to properly bathe. Many Ashkenazim have the custom on the Shabbat directly preceding Tisha Be-Av (called Shabbat Hazon) to not wear Shabbath clothes at all, but weekday clothes that have not even been freshly laundered! Aside from these flagrant violations of decorum in halakhah, a mourning period for such an extended period of time is simply too much for people to reasonably handle – and this assessment is not my own, it is actually written in the sources, as will be seen below.

The Nine Days

Then there are “The Nine Days,” the 1st to the 9th day of Av, from rosh hodhesh Av until Tisha be-Av – and this is the actual time of mourning according to Hazal, the Geonim, and all of the early Rishonim. So what is actually required by halakhah? Is it mekori to simply abide by the strictures followed by most for twenty-one days for only nine? Is everything that the Haredi/Hasidic world forbids actually forbidden? The answer to these questions is also “no.”

Hazal were not ascetics and they actively opposed ascetic practices as being “sinful” and out of proper balance – and this is why there was no original practice of “Three Weeks.” (Anyone who wants to read further can look into the discussion in the Gemara as to why the Nazir is required to bring a sin-offering – cf. b.Ta`anit 11a; Rambam, Mishneh Torah, Hilkhot De`ot 3; Rambam, Shemoneh Perakim 4).  דו”ק – למד היטב חקור והשכלת

The Summation of the Rambam

The Rambam summarizes the observance of the “Nine Days” in three short halakhoth as follows:

TEXT (Mishneh Torah, Hilkhot Ta`aniot 5:6-8)

משייכנס אב ממעטין בשמחה ושבת שחל תשעה באב להיות בתוכה אסור לספר ולכבס וללבוש כלי מגוהץ אפילו כלי פשתן עד שיעבור התענית ואפילו לכבס ולהניח לאחר התענית אסור וכבר נהגו ישראל שלא לאכול בשר בשבת זו ולא ייכנסו למרחץ עד שיעבור התענית ויש מקומות שנהגו לבטל השחיטה מראש החודש עד התענית

תשעה באב לילו כיומו לכל דבר ואין אוכלין אלא מבעוד יום ובין השמשות שלו אסור כיום הכיפורים ולא יאכל בשר ולא ישתה יין בסעודה המפסיק בה אבל שותה הוא יין מגיתו שיש לו שלושה ימים או פחות ואוכל בשר מליח שיש לו שלושה ימים או יתר ולא יאכל שני תבשילין

במה דברים אמורים שאכל ערב תשעה באב אחר חצות אבל אם סעד קודם חצות אף על פי שהוא מפסיק בה אוכל כל מה שירצה וערב תשעה באב שחל להיות בשבת אוכל ושותה כל צורכו ומעלה על שולחנו אפילו כסעודת שלמה וכן תשעה באב עצמו שחל להיות בשבת אינו מחסר כלום

TRANSLATION (Bracketed comments [ ] are mine)

“From the time that Av enters, we decrease our joy” [a direct citation of the Mishnah in Ta`anit 4:6] and the week within which the 9th of Av falls, it is forbidden to cut hair, to do laundry, or to wear a freshly-ironed garment – even a linen garment [i.e. since they are so drastically prone to wrinkling] – until after the end of the fast [i.e. of the 9th of Av]. And even to launder or iron something that will be set aside and worn only after the fast is forbidden. It has already become a common custom among Jews not to eat meat during this week, or to enter into the bathhouses until after the fast, and there are even places where they have the custom to stop the slaughtering of meat from rosh hodesh until the fast.

The 9th of Av – its night is like its day in every respect. And we do not eat [the day before] unless it is still during the day, since it is forbidden to eat during the beyn ha-shemashoth of [the evening before] just like Yom Ha-Kippurim. One does not eat meat or drink wine at the meal just prior to the beginning of the fast [seudah ha-mafsik bah], but wine may be drunk from the press which is three days old or less [i.e. unfermented in any real way; grape juice], and it is permitted to eat salted meat that is three days old or more, but [nevertheless] one should not eat two cooked dishes [at the final meal before the fast].

With regard to what are we speaking? Where someone ate on the day before the 9th of Av after halakhic mid-day [hatzot], but if he ate a meal before halakhic mid-day, even if he considers it his final meal prior to the fast [seudah she-hu mafsik bah], he may eat whatever he wants [at that meal – i.e. since it is before hatzot]. When erev Tisha be-Av falls on Shabbat, one eats and drinks whatever he needs and brings food up onto his table, even to the point of it being as lavish as a meal of Shelomoh HaMelekh. Also if the 9th of Av itself falls on Shabbat, one should not detract from [either the quality or quantity of his food or drink] in any way.”

Important points to note about the Rambam’s words are:

[a] Halakhic abstentions only apply to the week in which the 9th of Av falls, not to all Nine Days. This means that when Tisha be-Av falls on the first day of the week, then one need not observe any prohibitions on haircuts, drinking wine, eating meat, doing laundry, ironing, etc. at all. According to halakhah, the greatest number of days that these various abstentions could be observed is six, since Shabbat is excluded from expressions of mourning.

[b] Post-Talmudic customs are subject to dismissal. Although he initially mentions a few common customs that he had heard of in his own time in the initial halakhah, the Rambam goes on to overturn those customs by what he codifies – i.e. the law of the Talmud – in the two halakhot that follow. This again shows the methodology of the Rambam in the Mishneh Torah where, although he may make mention of certain customs, and may even praise them as being good or useful options at times, the law ultimately remains as it was determined by Hazal. This is the case, unless the Rambam understands there to have been a genuine change in reality or circumstances since the era of Hazal, on account of which the law needs to be re-applied.

[c] No mention is made of music, either listening to it or not listening to it during the month of Av. Music, other than folk melodies sung a capella, was not a daily occurrence in the times of Hazal or even in the times of the Rambam. Usually, music was associated with the celebrations included with weddings, which are already forbidden during the first nine days of Av anyhow. Our music listening today is much different, however, and there are various modern rabbanim that permit listening to music as something ordinary and normal since many today would become unduly depressed without music for more than a day or two. But again, this ruling is not even a contrivance since the halakhah makes no mention of forbidding music during this time in the first place.

[d] There is no halakhic prohibition on bathing during the Nine Days at all. Beside the fact that the Rambam mentions the abstention from bathhouses as being merely a custom, it must also be remembered that in his time – as well as that of the Gemara – people did not bathe regularly. Many bathed only once weekly likhvod Shabbat (“in honor of the Sabbath”). Those who bathed regularly were referred to as istenisim – a borrowed Greek word meaning “weak” – but used by the hakhamiym to refer to someone who is sensitive or finicky about cleanliness. Today, since nearly all people in our culture bathe regularly, the prohibitions on bathing or washing apply only to the specific narrow times in which they were expressly forbidden by the hakhamim – namely, on the days of Tisha Be-Av and Yom Ha-Kippurim.

[e] There is no halakhic prohibition on eating meat during the Nine Days. Again, not eating meat for the first nine days of Av is is mentioned as a custom, not law. The law with regard to the consumption of meat is related in the following halakhot, which expressly permits the eating of meat during this time.

The practical summary from the Rambam is as follows:

Table - Tisha be-Av and Nine Days

Too Much Mourning

While excessive mourning is always discouraged by Hazal, and even forbidden (cf. Rambam, Mishneh Torah, Hilkhot Evel 13:12), the extent of mourning that is considered “too much” has apparently changed from ancient times. Directly after the halakhot cited above, the Rambam makes the following important statement regarding most peoples’ ability to endure asceticism:

TEXT (Hilkhot Ta`aniot 4:9)

זו היא מידת כל העם שאינן יכולין לסבול יותר מדיי אבל חסידים הראשונים כך הייתה מידתן ערב תשעה באב מביאין לו לאדם לבדו פת חרבה במלח ושורה במים ויושב בין תנור לכיריים ואוכלה ושותה עליה קיתון של מים בדאגה ובשיממון ובכייה כמי שמתו מוטל לפניו וכזה ראוי לחכמים לעשות או קרוב מזה ומימינו לא אכלנו ערב תשעה באב תבשיל אפילו תבשיל של עדשים אלא אם כן היה בשבת

TRANSLATION (Bracketed comments [ ] are mine)

This is the attribute of the entire nation [kol ha-am], that they are not able to suffer too much. But the ancient pious ones [hasidim ha-rishonim] used to conduct themselves [during the final meal before the fast] on erev Tisha be-Av in this way: They would bring him – while he sat by himself – dried bread with salt. He would dip it into water and sit between the oven and the stove-top, drinking a pitcher of water with it amid worry, dark emptiness, and weeping like one whose dead is lying before him. And in this way, or close to it, it is proper for hakhamim to conduct themselves. Never in all my days [i.e. growing up in the house of his father, Rabbi Maimon] did we eat a tavshil [cooked dish] on erev Tisha`be-Av, even a tavshil of cooked lentils, unless that day fell on a Shabbat.

Here the Rambam makes the observation that the majority of people cannot stand up under too much suffering (i.e. deprivation, asceticism, etc.). He relates how Rav Yehudhah bar Ilai in b.Ta`anit 30a-b used to take his final meal and says that it is indicative of how the early pious ones used to conduct themselves. Also, he says that “hakhamim” – which I believe specifically refers to acting dayyanim sitting on courts over Israel (see where a few halakhot later, he uses the term talmidhei hakhamim (“Torah scholars”) which are those educated people in any era who may or may not serve on a public court – should strive to act likewise. He also relates how he was raised in the house of his father, the great Rav Maimon.

However, he makes the observation that apart from these particularly pious people, the majority of the Jewish nation cannot stand up under overly stringent mourning practices. This is an observation that unfortunately escaped the European authorities who felt that the evils of the common people needed to be exorcised through harsh ascetic practices – mostly based on the “kabbalah” and mysticism. This certainly escaped those early European architects of the customs now known as “The Three Weeks” and “The Nine Days,” customs that le-aniyut da`ati should be all but ignored in favor of the mekori instructions of Hazal. Many people, when faced with this acknowledgement of “levels,” feel a sense of guilt in not striving to emulate the piety of the ancients, but this should not be the case. Each person should understand who he is and joyfully accept it in humility. May HaShem help us all in this regard.

Enjoy your music, meat, and wine.

Being Meqori – Rav Yitzchak Abadi: An Excellent Response to Mikveh Lady Meddling

לק”י

As many of you know, I am a fan of the [chiefly] Sefaradiy approach to halakhah wherein everything is considered – historical precedent, the state of the people at large, technology, the lack of proper authority to make new gezeroth in our times, pressing societal needs/problems, and most of all the willingness to reassess the halakhah as it has developed in light of the meqoroth (sources). The goal is to make Torah livable and not require more than Hazal required while also not demanding that people somehow re-create a bygone era or society that no longer exists.

Rabbi_Yitzchak_AbadiOne such Sefaradiy rav working hard in this endeavor is Rav Yisshaq `Abadi of Yerushalayim. Rav `Abadi, who was born in Venezuela and grew up in Israel, was discovered and sent by Rabbi Avraham Yeshayah Karelitz z”l (the “Hazon Iysh“) of Beney Verak to study under Rabbi Aharon Kotler z”l in Lakewood, NJ. In the mid-1960’s, after the passing of Rav Kotler, Rav `Abadi became the sole poseq for the expanding community of Lakewood, singly rendering decisions for both Ashkenaziym and Sefaradiym, until he was ousted years later by descendants of Rav Kotler for political reasons. Although I myself do not always agree with the particulars his approach (mainly because he tends to rigorously follow the Shulhan `Arukh for better or worse, and while there is a principle of following a halakhic authority in their leniencies and stringencies alike, the Shulhan `Arukh itself is itself an amalgamation that does not itself follow that model, and this is not to mention the fact that since today most of our halakhah comes from books and not personally from rabbaniym, this principle does not, le-`aniyuth da`ati, have much place in the current era), nonetheless my admiration and respect for Rav `Abadi as a rav is due to his confidence and bravery in making halakhic decisions. Known by outsiders as a “makel” in many areas, he is known by his students and admirers as an incredibly capable rav with a knowledge of halakhic sources unparalleled by few in our time. As it says in Masekheth Sanhedriyn 6b, “אין לו לדיין אלא מה שעיניו רואות – there is nothing for [the hakham] to judge except for that which his eyes see” meaning that the halakhah is determined by each hakham or dayyan according to the best of what he can assess about the situation and he must follow his own understanding as he sees it, and when the hakham searches a matter properly and gives a ruling, the Gemara says that we assume that “God is with him in judgment” (cf. Rashi, Mussaf Rashi there).

Nevertheless, my own differences of opinion with him notwithstanding, the work that he and his sons do on their website kashrut.org is nothing short of incredible. What they have produced is a resource that is open, accessible, and valuable. And while they are most known for their work in the areas of kashruth and hilkhoth Shabbath and Yom tov, they are willing to answer any halakhic question sent to them. Much of their aim is to utilize the historic pisqey diyn (rulings) available to make orthodox Judaism more accessible and affordable to a wider segment of Jewry. Examples of such rulings are his promotion of Torah scrolls that are produced through a silk-screening process (an explanation may be found HERE) and his certification of Hebrew National brand meat products – together with Rav Ralbag of the Triangle-K – as being kosher for those who do not require “glatt.” Other rabbinic work includes a shortened form of birkath ha-mazon, which is available digitally from the Google Play app store HERE, something that I find useful and have on my own phone.

But perhaps one of the smartest arenas they engage in is defending women against the onslaught of the dreaded “mikveh lady.” You know, the nosy Yentas who are less than discreet and think that their job is to embarrass women who come to use the mikveh, all while apparently being qualified as halakhic decisors. Mikveh ladies, much like the stereotypical lunch ladies who make you lose your appetite and avoid the cafeteria, unfortunately are responsible for driving many Jewish women away from the misswah of miqweh as well as turning them off from taharath ha-mishpahah altogether. Rav `Abadi and his sons have risen to this challenge by taking complaints and personally interceding on behalf of many women, setting more than a few of these tyrannical biddies straight. They do this because, unlike other poseqiym, they allow women to immerse in a bathing suit (which is fine in the Gemara, even le-khatehiylah), to keep things like permanent belly-button piercings in, and to check themselves for cleanliness – all things which make many women who are returning to observance, and to taharath ha-mishpahah specifically, much more comfortable and willing to go immerse once a month.

Several times on their site, they have posted their correspondences with mikveh attendants. One which I thought was particularly excellent can be found HERE.

In closing, I want to highlight the fact that Rav `Abadi, although he is not a “Rambamist,” Yemenite, a follower of Rav David Bar-Hayyim, or a part of some other particularly meqori group, is still very much considered by me to be meqori. The reason that this is important is that I have received comments lately that “returning to Second Temple Judaism does not seem to be the way forward” in response to the work of this site. But this is a gross misstatement based on a complete misunderstanding of what meqoriyuth is and what this site stands for. Meqoriyuth means returning to the texts of Judaism written in ancient times, not a return to ancient times. No one thinks that when they follow a pesaq of the Rambam, or even of the Shulhan `Arukh for that matter, that it is then required of them to dress in garb from a thousand years ago and learn Arabic. This would be absurd. What we are interested in is the is the purity and simplicity of Hazal in their legal reasoning and the universal focus of their wisdom. There is, of course, much more that could be said about this, but I’ll end it here for now.

Perhaps more later.

Until then, kol tuv.

YB

Being Meqori – The Life and Loss of Rabbi David Chelouche z”l

לק”י

Just over a month ago, Kelal Yisra’el suffered the loss of a great meqori hakham and Sefaradiy Chief Rabbi of Netanyah, HaRav David Chelouche z”l.

Rav Chelouche (שלוש) was born on January 1st 1920 and passed away on June 8th of this year. He authored many books of halakhah and commentary on the Miqra (Scripture, Tanakh), including a well-known collection of she’iloth and teshuvoth entitled Hemdah Genuzah (חמדה גנוזה). Notable relatives are his niece (the daughter of his sister) who was the wife of HaRav Mordekhai Eliyahu z”l and his younger brother, Rav Avraham Chelouche, who still serves as Chief Rabbi of Kefar Saba.

He learned at Yeshivath Porath Yosef and studied under HaRav `Ezra `Atiyyah z”l alongside such hakhamiym as: Hakham `Ovadyah Yosef z”l, HaRav Hayyim David HaLevi z”l, HaRav Ben Tziyon Abba Sha’ul, and others. In 1953, he was sent to serve as Chief Rabbi of Netanyah by the then operative Rishon Le-Ssiyon, HaRav Ben Tziyon Me’iyr Hai Uzziel z”l, a position in which he served up until his recent passing.

Among other things, he was a prominent supporter of the Ethiopian Jews, opposing the idea that they needed to undergo a giyur le-humrah in order to marry Jews from more traditionally-established communities.

Like many of his Israeli-Sefaradiy compatriots and fellow hakhamiym, Rav Chelouche had an authentic vision to unite all Jews under one, reasonable, livable halakhic norm in which all ethnocentric and divisions that developed during the galuth. His loss was such that it seems he may never truly be replaced, or at least that is the common feeling when such a great and holy hakham passes from our midst, but I am sure that even now – in the `olam ha-emeth (the “world of truth”) – he would assure us that if we strive it is possible to not only replace him at the level to which he attained, but also to surpass him – a notion that feels so far from our present reality. HaShem ya`azor lanu la-`aloth be-liymudh toratho kedhey la-`asoth (“May HaShem help us to rise in the learning of His Torah for the purpose of carrying it out”). Amen, selah.

One of my favorite hakhamiym of the current generation, Rav Haim Ovadia of Rockville, Maryland has done a short, two-part series on the halakhic ideology of Rav Chelouche that I highly recommend listening to, either at the links below or on his podcast channel which is also hosted at Spreaker.com.

In this series, Rabbi Ovadia learns through a portion of the introduction to Hemdah Genuzah, a portion of which I have provided below.

Hemdah Genuzah - Intro

Enjoy, and may HaShem grant us the zekhuth to live up to the ideals of His servant who has passed from our midst, but whose wisdom remains, HaRav David Chelouche z”l.

Kol tuv,

YB

Minimum Days To Wait Before Counting Seven Clean Days – An Amazing Mekori Perspective from Rav Yosef Qafih z”l

Miqwah Water

[Note: The below is for information purposes only, as is everything on this site. The decision to act upon any of it or not is the personal decision of the reader and any details regarding the observance of any halakhah – especially those laws which are intricate, complicated, and/or severe – should be discussed with a competent rav.]

Several years ago, I was approached by members of the local community kollel in protest of a halakhic ruling made by Rabbi David Bar-Hayim regarding taharat ha-mishpahah which they had found on the internet. It was specifically in regard to whether or not a woman needs to wait a minimum number of days before beginning to count her shivah nekiyim (“seven [clean] days”), or whether she may begin counting mi-she-tifsok (“from [the day] that she will cease”) – i.e. from after tzeit ha-kokhavim on the day she properly ascertains that she has stopped bleeding. Rav Bar-Hayim rules like the Rambam and other rishonim in not requiring a wait for any number of days once bleeding has completely stopped, even if the woman bled for only one day. Since most of the Haredi-Hasidic world – indeed, most of orthodoxy in general – follows the ruling of the Rema in the Shulhan Arukh (cf. Yoreh De’ah 196:11), they were almost beside themselves with concern.

The Rema, who is merely taking the position expressed in the well-known 15th century Ashkenazi work Terumat HaDeshen, requires women to wait at least five full days before being able to count their first clean day, even if they only bled for a day or two. Additionally, the Rema relates that this excessively strict and, as we shall see, nearly baseless ruling, and others similar to it, are “not to be changed” (אין לשנות). The Siftei Kohen there (pop. “Shakh”) writes that it is a lo pelug (“not [able to be] disputed”) – i.e. no later authority may rule differently (see there).

Of course, while rabbanim of other parts of the world took a similar position that required a minimum number of days before counting the shivah nekiyim, the strict “decree” related by the Rema has been ignored by various non-European authorities, including Hakham `Ovadyah Yosef z”l who upheld the opinion of Rabbi Yosef Qaro and required waiting only four days and Mori Yusef Qafih z”l, as we will see shortly, who did not require any at all. Needless to say, the stark contrast in positions between Yemenites and Ashkenazim put these Haredi-Hasidic types on the verge of conniption and they felt constrained to protect the “sanctity” of Judaism from those who would dare take a different approach (note sarcasm).

The reason these rabbis approached me – rather than simply calling Rav Bar-Hayim on the phone and respectfully inquiring as to the reason behind his position – is another story, but it was basically due to three factors: [1] their knowledge that I was connected with Machon Shilo while I lived in Israel and am his friend, [2] an apparent preference for speaking lashon hara and motzi shem ra instead of properly investigating the facts, and [3] a penchant for cowardice. Basically, they thought that it would be easier to discredit Machon Shilo by attacking me, figuring that they would overwhelm me and I would be unable to provide them with a cogent answer as to why the rabbi had ruled this way in such a sensitive area of halakhah. What ended up happening was quite to the contrary.

My immediately reply was that since Rav Bar-Hayim studied under Rav Yosef Qafih z”l, and had acquired personal semikhah from him, he was merely following his rav in this pesaq.

“So, you’re saying that Rav Kapach poskened this way lamaiseh?” they asked.

“Yes,” I said, “and he is not alone. This ruling is somewhat common in the Baladi Yemenite community.”

With looks of disgust and disbelief, they simply said, “We are not mekabbel. There is no way that a gaon like Rav Kapach could be such an am ha’aretz that he doesn’t even know how to read the Shulchan Aruch!”

I responded matter-of-factly, “Well, I have the complete pirush of Rav Yosef Qafih on the Rambam at home. I can prove to you that he held this way. I will find the exact source and get back to you.”

Assuming that in my looking I would find out how mistaken I was, they said, “We would love to see where he says that.”

They carried the content of our conversation back to the ears of the vindictive Rosh Kollel who sent them, and I returned to my office to find proof. What I found was nothing short of amazing. I had seen this elsewhere while doing translations for Makhon Mosheh, the Rambam research institute headed by Rav Ratson Arussi, but I had never looked directly at the pirush of Mori Yusuf z”l until that point.

In Hilkhot Isurei Bi’ah 11 the Rambam discusses the laws of a yoledet (a woman unclean from the bleeding that accompanies childbirth) and counting the shivah nekiyim (the seven clean days). While recounting the halakhot, he also addresses some errors that had crept in during the Geonic Era under the influence of Karaite practices and interpretive errors that brought about the adoption of excessive humrot. Throughout this section, the Rambam demolishes the notion that such humrot and foreign practices – even though they had become fairly common in some regions – were acceptable post facto due to the force of custom. Twice he says, “ein zeh minhag ela ta’ut – this is not custom, but error.” It is important to note that in the view of the Rambam, ta’ut (טעות – “error”) can never be elevated to the level of “custom” just because a lot of people have been engaging in a mistake for an extended period of time. Error must always be corrected and dispelled. The Rambam was not alone in this; it seems that this was also the view of Rav Natronai Gaon, as I have written elsewhere.

He writes,

HALAKHAH (Text)

יב (יד) זה שתמצא במקצת מקומות שהנידה יושבת שבעת ימים בנידתה ואף על פי שלא ראת דם אלא יום אחד ואחר השבעה תשב שבעת ימי נקיים אין זה מנהג אלא טעות היא ממי שהורה להם כך ואין ראוי לפנות לדבר זה כלל אלא אם ראתה יום אחד סופרת אחריו שבעה וטובלת בליל שמיני שהוא ליל שני שלאחר ימי נידתה ומותרת לבעלה

HALAKHAH (Translation)

[12] (14) This [practice] that is found in some places where the niddah will dwell seven days in her niddut even though she only sees blood for one day, and after those seven she will sit for [a further] seven clean days (shivat yemei nekiyim) – this is not a “custom” but an error from the one who told instructed them thusly, and it is not proper to pay attention to this opinion at all. Rather, if [a woman] saw blood for one day, she counts seven [clean days] after that day and immerses on the night of the eighth – which is the second night after the days of her niddut – and she is then permitted to her husband.

COMMENTARY (Rav Yosef Qafih – Bracketed comments [ ] are mine)

On these two halakhot (12-13) the Magid Mishneh writes words that are simple and clear. These words are also no secret and well-known [i.e. there is no need for them to be quoted here].

The Noda BiYehudah writes (in Yoreh De’ah, Mahadurah Tinyana, siman 125):

“…The Geonim did not mention this matter of setirat shikhvat zera [i.e. that semen which issues out of the vagina in the days following marital relations can ‘undo’ or cancel out clean days, causing the need for her count to be restarted] and explained the matter as it was brought by the Rema in Yoreh De’ah 196:11. And there the Rav, the Beit Yosef, that the fact that the Rif omitted this law is not a proof that he holds [a similar opinion] to the Ra’avad, namely, that this matter was not explained [by the hakhamim] except in relation to ritual purity, not in relation to [whether a woman is permitted to have relations with] her husband, since the Rif omitted many laws, for it is his method to omit that which is not common. And says that this is also not a common occurrence since the majority of women usually ‘continue seeing [blood] for five or six days and they therefore have no need for this law’ (see there). [i.e. even if a woman has relations just prior to the onset of her menstruation, she will – according to the view of the Beit Yosef – bleed for a sufficient length of time that even if she were to issue semen at the same time it would not affect her counting of the shivah nekiyim]

But I say that his reasoning is strained [devarav dahukim – דבריו דחוקים] because many women see [blood] for only one or two days and then stop [bleeding]. And it appears, in the poverty of my personal estimation [le-aniyut da’ati – לעניות דעתי], that the intention of the Rif and the Geonim in omitting this matter of setirat shikhvat zera is not because of the position of the Ra’avad, but because of what the Tosafot wrote in b.Niddah 33a, starting at the words רואה הויא : ‘Our teacher Yitzchak says that it is possible to find that a woman that had permissible relations whose clean days are canceled out by pelitah [i.e. the leaking of semen following relations], even after three consecutive days, because the halakhah has been established for us in accordance with the rabbanan, as explained by Rebbi Akiva, that they require six full onot [an onah is a 12-halakhic-hour period, either a day or a night, and so one day is thereby equal to two full onot] etc.” (see what the Tosafot write there). [On the same subject] the opinion of the Rambam – in Hilkhot She’ar Avot HaTuma’ot 5:12-13 –  is that leaked semen does only imparts uncleanness [metam’ah – מטמאה] up until three onot, which is equivalent to a day and a half after the onah is which she had relations. It is not possible to find a practical application of this law that would occur under permissible circumstances at all [i.e. since, as the Tosafot explain, a tum’ah mafseket cannot interrupt the count if it appears and resolves on only one day – see Table 1a below and the explanation of the Tosafot in b.Niddah 33a, starting at the words רואה הויא]. No, this law can only imply in a case where she had transgressed and had relations at a time when she was forbidden to do so, and such a thing is certainly not a common occurrence. And it was for this reason that the Rif and the Geonim did not teach about this matter of pelitat shikhvat zera because they held as did the Rambam that shikhvat zera can only impart uncleanness for three onot and that it is only possible to find these circumstances when a woman has had forbidden relations which is not a common occurrence. The reasoning of the Beit Yosef is strained.” etc. – see there in the Noda BiYehudah.

See also above in comment #17.

It appears to me that the opinion of the Rif, the Rambam, the Ra’avad, and the Rashba that there is no halakhic concern for pelitat shikhvat zera at all, but rather she begins to count the shivah nekiyim from the time that she stops bleeding [mi-she-tifsok – משתפסוק] and afterward immerses. The practical ramifications of this opinion is that in not a few cases there are humrot that prevent couples from fulfilling the mitzvah of ‘be fruitful and multiply’ [i.e. פריה ורביה – having children], especially for those women who ovulate early and, through [unnecessarily] delaying immersion, miss their time for becoming pregnant. The plain halakhah is to be diligent and careful concerning the shivah nekiyim specifically according to the methodology of the Rambam, which is the received tradition from the Geonim, as was mentioned above, because in most cases [today] counting the shivah nekiyim is not just the stringency of Jewish women [humrat banot yisra’el – חומרת בנות ישראל], but is actually de-oraita [i.e. since nowadays the majority of women do not menstruate at a consistent time each month and never establish a veset (וסת) at all, they are zavot in the actual sense and are obligated to carefully count shivah nekiyim before being able to go to the mikveh]. In Yemen there were various customs. There were those who began counting shivah nekiyim as soon she stopped bleeding, there were those who waited [a minimum of] four days and then counted shivah nekiyim, there were those who waited [a minimum of] five days and then counted shivah nekiyim, and there were those who waited [a minimum of] seven days and then counted shivah nekiyim. And the one thing that they all had in common is that they all were careful to count shivah nekiyim in accordance with the truth of the Torah. And that which the Rambam wrote, ‘and it is not proper to pay attention to this opinion at all’ appears to me to indicate that even women who have been accustomed to counting a full seven days before beginning to count the shivah nekiyim and now want to return to the methodology of the Rambam may, and they do not even require hatarat nedarim to do so since ‘this is not a custom but an error.'”

(End Commentary)


And there it was. Nothing could have been a more clear statement by Mori Yusef z”l of his position on the matter – and it indeed was identical to that of his student, Rabbi Bar-Hayim. I sent a picture of this section of commentary to each of the rabbis who had confronted me about this.

One read it and immediately conceded by saying, “Wow. Rav Kapach was a gaon b’toyreh and if he said it then I have no arguments. Yasher koach.”

The other wanted to discuss it and so we met in the shul and I took him through the entire passage. His reaction was guarded and he was in disbelief. “This must just all be his learning. It can’t be lamaiseh,” he said. Then I pointed to the last paragraph. “Ah, so he was discussing the Yemenite mesoyreh,” he said. Then I pointed to the last sentence and he said nothing else but, “Okay. Thank you.”

Once it reached the eyes of the vindictive Rosh Kollel, I got no response other than a smoldering disapproval.

For anyone interested, the following is the passage from the Noda BiYehudah quoted at length above. It is not exact, but remember that Mori Yusef z”l did not use computers or a searchable Bar-Ilan when writing his pirush. He used only a collection of sefarim along with his vast memory and knowledge of the sources – writing each note on 3 x 5 cards in pen before sending the stacks of cards in rubber bands to his students for typesetting. He was nothing short of an amazing talmid ha-hakhamim.

NODA BIYEHUDAH – MAHADURAH TINYANA 125

Noda` BiYehudhah - Mahadurah Tinyana 125

One of the things that really rocked these two Haredi rabbis was not only that Mori Yusef was posek this way le-ma’aseh, but also that a major Ashkenazi figure like the Noda BiYehudah explained his position, even though he himself ruled like the Rema in the end.

Shavua tov le-kulam,

YB

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Upcoming Translation – Ben Ish Hai’s Teshuvah on Using Bicycles on Shabbath and Yom Tov

Indian Cyclist

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If you enjoyed the translation of Rav Messas’ teshuvah on women and haircovering, then you will also like what the Ben Iysh Haiy had to say regarding the use of bicycles on Shabbath and Yomiym Toviym.

A certain hakham in Mumbai, India once wrote to Rav Yosef ben Hayyim of Baghdad about whether or not it was permissible to ride a bike on either Shabbath or Yom Tov. After examining the issue thoroughly in light of reality and the Talmudic sources, he came to the conclusion that it was indeed permissible to make use of a bicycle, providing certain conditions.

Like so many important teshuvoth, the opinion of the Ben Iysh Haiy is often referenced, but has rarely been accessed. Never before has this letter been translated into English for the non-Hebrew-speaking reader, but soon it will be available – in its entirety – on Forthodoxy.org in a downloadable PDF format.

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Shavua` Tov,

YB

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