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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).
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:  their knowledge that I was connected with Machon Shilo while I lived in Israel and am his friend,  an apparent preference for speaking lashon hara and motzi shem ra instead of properly investigating the facts, and  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.
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
 (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.'”
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
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,