The Prohibition of Hadash – A Meqori 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.]

[Further Note: The position expressed below does not necessitate a functional change in the kashruth of hadash as commonly practiced today. However, it does place an almost identical practical outcome on a newer, and squarely meqori, line of reasoning. This is the intended purpose of what follows.]

What in the world is “hadash”?

The word hadash means “new” and is a reference to “new grain” – in other words, grain that has taken root after the sixteenth day of the Hebrew month of Nisan of one year until after the sixteenth of Nisan of the following year. During that time, the grain which took root is referred to as hadash or “new” and it is forbidden to eat it until after the sixteenth of Nisan.

So, what happens on the sixteenth of Nisan? This is the second day of the week of Pesah when the first of the grain offerings for the year – called the Omer – is offered in the Beyth HaMiqdash, or the Temple. In a time like today when there is no Temple, new grain is forbidden for the entire day of the sixteenth, but when the offering is brought in the time of a Miqdash, new grain becomes permitted directly after the Omer is offered during the day of the sixteenth within Jerusalem and surrounding areas, and after halakhic midday (hassoth) in the outlying areas. After either the Omer is offered or midday or the end of the sixteenth of Nisan, the grain is no longer referred to as hadash (“new”), but yashan (“old”), signifying its new permitted status.

Interestingly enough, the laws related to hadash and yashan stem from a single verse in Wayyiqra 23:14 which says,

TEXT

כג:יד  וְלֶחֶם וְקָלִי וְכַרְמֶל לֹא תֹאכְלוּ, עַד עֶצֶם הַיּוֹם הַזֶּה עַד הֲבִיאֲכֶם, אֶת קָרְבַּן אֱלֹהֵיכֶם:  חֻקַּת עוֹלָם לְדֹרֹתֵיכֶם, בְּכֹל מֹשְׁבֹתֵיכֶם.

TRANSLATION

23:14 And you shall eat neither bread, nor parched grain, nor fresh kernels, until this very day, until you have brought the [omer] offering of your God; it is a statute forever throughout your generations and in all your dwellings.

With such large legal implications stemming from such a short passage, the laws governing the consumption of hadash and yashan seem to be in the category of what the Mishnah in Masekheth Haghiyghah (1:8) refers to as כהררים תלויים בשערה מקרא מועט והלכות מרובות – “Like mountains suspended by a hair, [meaning that in connection to this body of laws there is] little scriptural basis and a multitude of halakhoth.”

This prohibition, however, does not apply to all grains. As with the laws of hallah and hamess, the first mishnah in Masekheth Hallah tells us that the application of the law is the same also with regard to hadash and yashan – namely, that the only grains under the prohibition are the hamesheth miyney daghan (“the five species of grain”) which are listed there as החיטים והשעורים והכוסמין ושיבולת שועל והשיפון. The Rambam in Kitab As-Siraj (his commentary on the mishnayoth) explicitly says – as does the Mishnah and Gemara – that these are exclusively species of Wheat and Barley. The common identification of שיבולת שועל with “oats” is an incorrect identification made by Rashi (cf. b.Pesahiym 35a), as is his identification of several others. This means that oats, rice, and even “buckwheat” (which is actually not “wheat” at all) do not come under the prohibition of hadash at all. As an aside, I always refer to oats by the Modern Hebrew designation קוועקר (pronounced “Keveyker” – i.e. “Quaker [oats]”) and not שיבולת שועל in order to avoid furthering the confusion and misidentification. 

The exact reasoning behind this commandment is unclear. However, In the Guide the Rambam generally places particulars of agricultural commandments under the rubric of opposition to the vast array of idolatrous practices by ancient pagans which were practiced by them in their agriculture. He also usually views them as being important, unlike animal sacrifices, for engendering respect for God and gratitude for His provision for mankind and specifically the Jewish nation. The Sefer HaHiynukh (#303) explains that the offering of the Omer prior to partaking of any grain from the wheat or barley harvest from the previous year is analogous to the requirement to make a berakhah before partaking of food, drink, smell, before performing misswoth, or witnessing certain types of people or phenomena.

Who, When, Where, and How

So, we have gone over the “what” and the “why” – remaining are the questions of “who,” “when,” “where,” and “how.” In other words,

  • Who is obligated to observe the prohibition of hadash, and on whose grain does the prohibition fall?
  • When does this prohibition apply? Just when there is a Beyth HaMiqdash, or in the current era as well?
  • Where does it apply? In the land of Israel, or does it apply outside as well?
  • How does one observe this prohibition in the places and times that it does apply?

The Rambam in Hilkhoth Ma’akhalot Asuroth 10:2-6 specifies that the prohibition of hadash applies in every era, even when there is not a Miqdash. This is the undisputed law from Hazal and it is contested by no one. So, then, this answers the question of “when.” And we will revisit the specific of the Rambam’s opinion a little later on in our discussion.

As for the “who,” it applies to Jews wherever they live whether men or women – and even servants, i.e. everyone who is obligated to the public misswoth associated with the Land. However, there is another aspect of the “who” question which we will also return to in a bit.

However, the central question in our time – and indeed in every era in which these halakhoth were discussed – is the question of “where”: Where does the prohibition of hadash apply? Within Israel or outside of it also?

The Mishnah states in Masekheth Qiydhushiyn (1:9) that

TEXT

א,ט  כל מצוה שאינה תלויה בארץ נוהגת בארץ ובחוצה לארץ וכל מצוה שהיא תלויה בארץ אינה נוהגת אלא בארץ חוץ מן העורלה והכלאיים ורבי אליעזר אומר אף החדש

TRANSLATION

Every commandment which is not dependent on the Land, we conduct ourselves [in accordance with it both] in the Land and outside of the Land. And every commandment that is dependent on the Land, we conduct ourselves [in accordance with it] only in the Land, except for `orlah and kilayyim. And Rebbi Eli`ezer says, even hadash.

Rebbi Eli`ezer includes hadash, along with `orlah and kilayyim, as a prohibition that although it depends on the land it nevertheless is kept even outside of the land. We will examine the position of Rebbi Eli`ezer momentarily.

In Masekheth `Orlah (3:9) it says explicitly that

TEXT

החדש אסור מן התורה בכל מקום

TRANSLATION

Hadash is forbidden from the Torah in every place.

Because of the seemingly explicit nature of this Mishnah, many Rishoniym rule in accordance with the opinion of Rebbi Eli`ezer. However, as we shall see, the opinion of Rebbi Eli`ezer may not be as simple or as straightforward as it seems.

The Unresolved Bavliy

The issue of whether the prohibition of hadash applies everywhere or just in the land of Israel is based on the interpretation of the last phrase in the pasuq (Wayyiqra 23:14) where it says be-khol moshvoteykhem – “in all of your dwelling places.” In other words, what are the halakhic implications of the word be-khol?

In the Talmudh Bavliy, Qiydhushiyn 37a-38b, the discussion of what exactly is implied by the phrase be-khol moshvoteikhem seems to have never been truly resolved, with the hakhamiym being essentially divided. As Rashi comments in his piyrush on the Torah there:

TEXT

בכל משבתיכם: נחלקו בו חכמי ישראל יש שלמדו מכאן שהחדש נוהג בחוצה לארץ ויש אומרים לא בא אלא ללמד שלא נצטוו על החדש אלא לאחר ירושה וישיבה משכבשו וחלקו

TRANSLATION

“The sages of Israel were divided on this matter (i.e. the extent of the halakhah as determined by the interpretation of be-khol moshvoteykhem). There were some that learned [from here] that the [prohibition] of hadash applies outside of the land, and there are some who say that this phrase does not come to teach us anything except that we were not commanded concerning hadash until after taking possession and settling [of the land] after its conquest and division [among the tribes].”

Because of this lack of clarity in the sughyah of the Bavliy, most poseqiym were left to determine their positions on the basis of the Mishnah.

The only direct examination of the position of Rebbi Eli`ezer suggests two different ways of understanding him: [a] he holds that due to be-khol moshvoteikhem the prohibition of hadash applies only in the land, and [b] that he held that it only applied in the land of Israel and was not related to `orlah or kilayyim (this view sees that the Tana Qama in the Mishnah only mentioned `orlah and kilayyim but thereby implied hadash) but was instead governed by the general rule stated by the Mishnah

In other words, his statement in the Mishnah either comes to argue for leniency or stricture. In the end of the discussion, they conclude that Rebbi Eli`ezer’s statement should be seen as an argument for a stricter interpretation as opposed to that of the Tana Qama which excluded hadash.

It should be very carefully noted that the seemingly explicit statement from Masekheth `Orlah cited previously is never brought as a decisive proof in the course of the sughyah in Qiydhushiyn with regard to hadash. It stands to reason that if the Mishnah in `Orlah was supposed to be understood as constituting an explicit and incontestable prohibition of all hadash everywhere in the world that it would have been brought in this discussion. Had they done so, it seems that they would not have had anything much to discuss.

Either way, as noted by the Taz on Shulhan `Arukh, Yoreh De`ah 293:4, the Gemara does not conclude in a very definitive way in favor of the view that the halakhah is definitely like Rebbi Eli`ezer. In fact, it appears that even in the generation of Rav Ashey there was a difference of opinion as to whether the prohibition of hadash outside of Israel was de-rabbanan or a de-oraytha, as it states in b.Menahoth 68b.

So, it seems that the Talmudh Bavliy holds that there is a prohibition of hadash even outside the land, but many particulars seem to simply be left un-examined. For instance, does this apply to Jewish grain outside of Israel, or does it apply to non-Jewish grain as well? What about grain that has been exported to lands outside of Israel – does this have the prohibition of hadash as well?

The Simple and Succinct Talmudh Yerushalmiy

Interestingly enough, the statements of Rebbi Eli`ezer in the Mishnah of both Qiydhushiyn and `Orlah are met with the exact same (i.e. uniform) explanation in the Talmudh Yerushalmiy. For those who may not know, there is no Gemara in the Talmudh Bavliy for any masekhta in the first order of the Mishnah, except for Masekheth Berakhoth. For this reason, `Orlah is simply left without commentary by the Persian hakhamiym. This is mostly due to the fact that such laws were agricultural and tied directly to the land of Israel. In Babylon they simply had little or no relevance.

In `Orlah 20a of the Talmudh Yerushalmiy it comments on the statement of the Mishnah that החדש אסור מן התורה בכל מקום by stating the Mishnah from Qiydhushiyn, but qualifying it as follows

TEXT

החדש אסור מן התורה בכל מקום:  מתניתא דרבי ליעזר דתנינן תמן כל מצוה שאינה תלויה בארץ נוהגת בארץ ובחוצה לארץ וכל [מצוה] שהיא תלויה בארץ אינה נוהגת אלא בארץ חוץ מן הערלה ומן הכלאים.  רבי ליעזר אומר אף החדש.  מה טעמא דרבי ליעזר (ויקרא כג) בכל מושבותיכם בכל מקום בין בארץ בין בחוצה לארץ.  מה מקיימין רבנין טעמא דרבי ליעזר בכל מושבותיכם בחדש שכן יצא בחוץ

TRANSLATION

Hadash is forbidden from the Torah in every place. The Mishnah of Rebbi Li`ezer (i.e. a shorter form of “Eli`ezer” used in the Yerushalmiy) that we learned there: “Every commandment which is not dependent on the Land, we conduct ourselves [in accordance with it both] in the Land and outside of the Land. And every commandment that is dependent on the Land, we conduct ourselves [in accordance with it] only in the Land, except for `orlah and for kilayyim. And Rebbi Li`ezer says, even hadash.” What is the reason [for the statement] of Rebbi Li`ezer? [It is because of the phrase] Be-khol moshvoteykhem, meaning in every place whether in the land or outside of the land. What did the sages realize was the reason [for the statement] of Rebbi Li`ezer? Be-khol moshvoteykhem, meaning that [the prohibition applies] even to hadash that has traveled (i.e. has been carried; exported) outside the land.

Both the Peney Mosheh and the Qorban `Eydhah on the Yerushalmiy affirm that the Yerushalmiy meant by this explanation to exclude grain grown outside of Israel itself, and that Rebbi Eli`ezer’s statement was intended to prohibit only grain grown within Israel that was exported to outlying areas or surrounding countries. This interpretation actually fits quite nicely within the seeming vague resolution of the Bavliy. Being that the vast majority of farmers outside the land of Israel were non-Jews in the Talmudic era, it makes sense that this limitation was put on the prohibition of hadash.

The Position of the Ba”H and Non-Jewish Grain

But what about in later eras when Jews were allowed to own land and farm it in various lands of the Diaspora? Does hadash apply to Jewish grain grown outside of Israel?

First of all, let’s consider the common reasoning given for why the majority of orthodox Jews do not observe the prohibition of hadash today. In fact, it is almost completely ignored. There are two reasons: First is the halakhic position of the Ba”H (the Bayith Hadash) written by Rav Yoel Sirkis z”l on the Tur, and the second – referenced mainly by Hasidic Jews – is a supposed dream of Israel Baal Shem wherein he supposedly received a permissive answer to the question of the halakhic status of hadash.

The second of these reasons is ridiculous and is not worthy of wasted breath. The Torah is not in Heaven (i.e. lo ba-shamayim hiy) and the hakhamiym ruled in the Talmud that דברי חלומות לא מעלין ולא מורידין – “the words of dreams neither elevate a matter or bring it down,” meaning that we do not take the contents of dreams into account as regards halakhic decisions. This is true even for a naviy emeth – a “true prophet” – so how much more so for anyone else, especially a dubious character like the supposed founder of the Hasidism.

As for the position of the Ba”H, it is a bit complex and enlists many different aspects found in the sefariym of his predecessors. His position is basically that since he saw that all of the rabbis of his locale (sixteenth century Poland) – including the more pre-eminent ones among his teachers – completely ignored the prohibition of hadash, there must have been a cogent halakhic reason and therefore he sought a legal justification of such a practice. Citing Rishoniym who held that hadash never applies in the fields of grain which were grown by non-Jews, he brings evidence from several places in the Gemara that the `Omer offering was not able to be offered from grain grown in the fields of non-Jews. He extrapolated from this that grain unsuitable for the `Omer offering must likewise not be subject to the prohibition of hadash.

The view of the Ba”H was harshly criticized by many, most notably the Gr”a and the Sifthey Kohen on the Shulhan `Arukh. The Shulhan `Arukh itself rules that the laws of hadash apply even to grain grown in the fields of non-Jews. However, Rav Qaro likely wrote this because he read the words of the Rambam in Hilkhoth Ma’akhaloth Asuroth chapter 10 as referring to all grain everywhere. However, this – like his reading of the Rambam with regard to `eruviyn – may possibly be an overly strict reading. Nowhere does the Rambam specify in the Mishneh Torah that the grain under discussion is of either Jews or non-Jews.

The Practice of Yemen and the Rambam

Mori Yusef Qafih z”l writes in his piyrush on the Rambam there that while many people understand the position of the Ba”H to be a hiydhush and a da`ath yahiydh (a singularly novel halakhic position), this is actually not the case as it was the practice in Yemen from early times to take a similar position to the Ba”H. In Yemen, the practice was not to apply the prohibition of hadash to the grain of non-Jews. He also writes that while he was growing up and learning in Yemen that he heard from hakhamiym there that it was very possible that this was in actuality the position of the Rambam himself, and he brings various indications for this assertion from within the text of the Mishneh Torah itself.

Rav Ratson Arussi, chief rabbi of Kiryat Ono, rules that this is exactly the position of the Rambam with regard to hadash and the grain of non-Jews. He writes so specifically in a teshuvah.

TEXT

לק”י

כבוד הרב שלום וברכה

רציתי לדעת מה הדין ביום בנושא של תבואה חדשה לדעת הרמב”ם

איזה תבואה אסורה רק בשדה של יהודי? בארץ או גם בחו”ל? האם מותר “להעלים עין” ולא לשלוח משגיחים וכו’ לחו”ל על מנת לפטור את החדש בדרך של ספק ספיקא והאם בכלל אנו צאן הרמב”ם נוקטים בשיטת ספק ספיקא ואם כן מהם התנאים לסברה שכזאת

יורנו הרב וה’ יסייעהו בדבר תורתו

גלעד

תשובה: רק תבואת חו”ל של יהודי – אסורה. אבל תבואת חו”ל של גוי – אינה אסורה

TRANSLATION

Peace and blessing to his honor, the Rav.

I would like to know what is the proper ruling with regard to the new grain today in opinion of the Rambam.

Which grain is forbidden, only that which is grown in the field of a Jew? In the land or outside of it? Is it permitted to “turn a blind eye” and to purposefully not send kashruth inspectors to areas outside of Israel [where grain is grown] etc. and to render it permissible in any case through use of a safeq-safeqa? And can we who are included in the flock of the Rambam adopt the halakhic methodology of such a safeq-safeqa, and if so then what are the conditions for being able to use a line of reasoning such as this?

Guide us, our teacher, and may HaShem give you assistance in the matters of his Torah,

Gil`adh

Response: Only the [new] grain grown outside of Israel by a Jew is forbidden, but the [new] grain grown outside of Israel by a non-Jew is not forbidden.

Summing It All Up

So, it would seem from the sources that there is indeed a prohibition on hadash today, and that it applies even outside of the land of Israel. However, it only properly applies to grain grown by or in the fields specifically owned by Jews. Inside the land, however, it would seem that all grain – whether grown by Jews or non-Jews – is subject to the prohibition of hadash. This appears to be the best and most reasonable interpretation of both Talmudhiym overall, as well as the nuanced position of the Rambam himself.

Practical Considerations and Outcomes

And this brings us to the practical questions of “how”.

In Israel, the Rabbanut and other agencies are already very careful to monitor all grain grown in the land and to make sure that all products sold are, in fact, yashan and not hadash. However, while many Jews avoid imported products, specifically from America, due to concerns of hadash, it seems that there is really no halakhic concern in these instances and those living in Israel may eat of imported products made of wheat and barley grown by non-Jews from outside of Israel.

In America, the only possible concern for yashan would be the imported Israeli products which, as we just said, really present no concern (as long as they are certified kosher) since the Rabbanut and certifying agencies already monitor very closely for hadashThe same goes for most other countries throughout the world.

Europe is mostly the same, however I do remember hearing that Israel exports a lot of durum wheat used for semolina flour to some places along the coast of the Mediterranean. This type of flour is used mainly for noodles, so those in Europe may want to check into the source of flour for these products to make especially sure. Other than this, however, there does not seem to be any real concern for hadash.

I hope that this was clear, insightful, and helpful. I plan to draft a more concise Hebrew version of my understanding with regard to this important halakhic topic, so be on the lookout for that in the near future, be-`ezrath HaShem yithborakh.

Kol tuv,

YB

Updated Translation – Rav Yosef Messas z”l on Covering the Hair

לק”י

הרב משאש מדליוןI have updated my translation of Rav Yosef Messas’ teshuvah wherein he explains why it is no longer necessary for women to cover their hair at all, whether in public or in private.

“Excellent translation and commentary. Yishar koach for your important work…”

– Rabbi Haim Ovadia, leader of Magen David Sephardic Congregation in Rockville, MD

If you have not yet read the English translation of the teshuvah – available only rom Forthodoxy.org – you may download it HERE.

Show your support!
Donate Button with Credit Cards

Comments and feedback are welcome and appreciated!

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

Indian Cyclist

לק”י

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.

If you have benefited from the work of this site and would like to make a contribution, you may do so by clicking on the “Donate” button below.

Shavua` Tov,

YB

Show your support!
Donate Button with Credit Cards

Women Covering Their Hair – 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.]

Introduction

At the outset, I will admit that what I present here is my own understanding of kisui rosh le-nashim (כסוי ראש לנשים – lit. “headcovering for women”). As with nearly every topic of halakhah there are conclusions that disagree with my own, but when one speaks his own view he cannot be divided. Honest and sincere study demands that one arrive at an honest and sincere conclusion – as it says “a judge can only rule in accordance with what his eyes see.”

The subject of women covering their hair when in public has been, and continues to be, a topic of intense discussion among women and halakhists alike. Questions such as “Who is required to cover their hair?” “Where are they required to cover their hair?” “How much of their hair is required to be covered?” “What type of covering(s) may be used?” “What is the purpose of covering hair, modesty or some other consideration?” “Is it a matter of cultural practice or positively-enacted law?” still seem to beset many women who grapple with the practice of kisui rosh today. Perhaps the greatest difficulty is that, although these are all important questions, many of them seem to elude an explicit explanation by Hazal. In fact, because the primary sources leave many of these points to the imagination, the few statements Hazal did make gave rise to a host of interpretations by the rishonim. What’s more, the actual text of the Gemara uses terminology that unfortunately caused some expositors – including the Rambam, the “Great Eagle” on whose wings many are carried out of the darkness of ignorance  – to turn an explicit statement of the Mishnah on its head, as will be discussed below, leading only to further confusion among later writers who referred to what he had written.

After much study and careful consideration, it is my firm belief that the explanation put forth by the late, innovative, and intrepid halakhist, Rav Yosef Messas z”l (1892-1974) cohesively explains all relevant texts and correctly contends that kisui rosh le-nashim is no longer a halakhic requirement in our times. At the conclusion of his famous responsum, Rav Messas writes that “there is much more that could be explained in detail regarding this matter, but the time is not currently available for me to do so.” As such, the majority of the analysis below is not included in Rav Messas’ original examination of the topic but is intended to serve as an appended explanation of the primary sources which time did not permit the holy sage in his lifetime to expound. However, before we discuss the conclusion, let us begin at the beginning.

 

The Mishnah – Dat Mosheh & Dat Yehudit

The entire subject begins with a short passage in the Mishnah (Ketubot 7:4):

אלו יוצאות שלא בכתובה העוברת על דת משה ויהודית איזו היא דת משה מאכילתו שאינו מעושר ומשמשתו נידה ולא קוצה לה חלה ונודרת ואינה מקיימת איזו היא דת יהודית יוצאה וראשה פרוע וטווה בשוק ומדברת עם כל אדם

“These are the women that are divorced without their ketubah payment: one who transgresses a matter of dat Mosheh or [dat] yehudit. What is considered to be dat Mosheh? If she feeds her husband produce from which priestly portions and tithes have not been taken, if she has intercourse with him while she is a menstruant, if she does not separate the requisite portion of dough for the priests, or if she makes a vow and does not fulfill it. What is considered to be dat yehudit? If she goes out in public while her head is uncovered, if she spins thread in the open marketplace, or if she speaks flirtatiously with any man who will engage her.”

As is clear from the text, dat Mosheh refers to “religious practice” (the actual meaning of “dat – דת”) which is established by the laws of the Torah, and dat yehudit refers to the religious practices established by Jewish women and is explained in this way by various Rishonim:

i. Rambam states in Hilkhot Ishut 24:11: “ואיזו היא דת יהודית הוא מנהג הצניעות שנהגו בנות ישראל – What is dat yehudit? It is the custom of modesty that Jewish women practice.”

ii. Rashi defines it similarly: “שנהגו בנות ישראל ואע״ג דלא כתיבא – That which Jewish women practice even though it is not written explicitly in a Biblical verse.”

iii. Lastly, the Tosafot HaRid defines it as follows: “דבר שאין בו איסור אלא שהנשים נהגות בו דרך צניעות – Something which is not connected to an actual prohibition, but women practice it as a part of feminine modesty.”

What is most important to note at this point is that the Mishnah categorizes the uncovering of a woman’s hair in public (peru’at rosh – פרועת ראש) explicitly as dat yehudit and not in that of dat Mosheh.

Does the Gemara Disagree?

The attendant Gemara for the Mishnaic phrase “she goes out in public and her head is uncovered” is found in b.Ketubot 72a-b and is fairly brief, but its pithy and somewhat unclear phrasing has become the occasion for volumes of commentary since redaction of the Babylonian Talmud.

ואיזוהי דת יהודית יוצאה וראשה פרוע:  ראשה פרוע דאורייתא היא דכתיב ופרע את ראש האשה ותנא דבי רבי ישמעאל אזהרה לבנות ישראל שלא יצאו בפרוע ראש [אמר רב יהודה אמר שמואל – רי״ף] דאורייתא קלתה שפיר דמי דת יהודית אפילו קלתה נמי אסור אמר רבי אסי אמר ר׳ יוחנן קלתה אין בה משום פרוע ראש הוי בה רבי זירא היכא אילימא בשוק דת יהודית היא ואלא בחצר אם כן לא הנחת בת לאברהם אבינו שיושבת תחת בעלה אמר אביי ואיתימא רב כהנא מחצר לחצר ודרך מבוי

TRANSLATION (INITIAL):

“What is considered a violation of dat yehudit? If she goes out in public and her head is uncovered: An uncovered head is referred to in the Torah itself, as it is written, ‘And he uncovers the head of the woman’ (cf. Bamidbar 5:18). The school of Rebbi Yishma’el taught that it is a warning to the daughters of Israel that they should not go out in public with their heads uncovered. [Rav Yehudah said in the name of Shemu’el*], ‘According to the Torah, a kalatah (קלתה) is permissible, but according to dat yehudit even a kalatah (קלתה) is forbidden.’ Rebbi Asi said in the name of Rebbi Yohanan, ‘While wearing a kalatah (קלתה) she is not considered to have an uncovered head.’ Rebbi Zeira raised a difficulty, ‘Where is this statement of Rebbi Yohanan applicable? If we say that he referred to the open marketplace, then we already have a statement by Shemu’el that it is forbidden by dat yehudit, and if he is referring to a courtyard, then we will not be able to allow a single daughter of Avraham Avinu to remain married to her husband!** Abaye said – and some say it was Rav Kahana – ‘Rebbi Yohanan was referring to a woman going from courtyard to courtyard by way of an alley.’”

*represents the girsa of the Rif and other Rishonim

**i.e. since there is hardly a woman who covers her head while in her private courtyard

Upon reading the above Gemara, several important observations and questions immediately stand out:

  1. Nowhere in b.Ketubot 72a-b does it mention dat Mosheh, but only dat yehudit. In fact, the phrase dat Mosheh never appears in the Gemara of the entire tractate of Ketubot, whereas dat yehudit appears twice. The most natural assumption is that dat Mosheh is simply not under discussion here. (The use of the phrase de-oraita will be discussed in detail below.)
  2. A proper understanding of this Gemara depends on the identification of kalatah (קלתה). What is it?
  3. What does “according to the Torah” mean? Is it indicative of a law, or is it merely discussing the implications of the Scriptural passage in Bamidbar 5:18?
  4. Why does the Gemara lack a description of a proper headcovering? The passage never discusses materials, how much hair needs to be covered in each context, or what a covering is supposed to look like. Why wouldn’t Hazal simply explain what constitutes a proper headcovering, especially when matters of family life (i.e. divorce) are at stake?
  5. What is the meaning and scope of the word “uncovered” (פרוע)? What does it mean when the kohen “uncovers” (ופרע) the hair of the sotah?

The Meaning of “De-Oraita”

Twice in the above passage, the Gemara uses the Aramaic phrase de-oraita (דאורייתא), generally understood to mean the same as min-hatorah (מן התורה – “from the Torah,” i.e. a Biblical law), but it can also have other meanings. The Sedei Hemed (4:19) demonstrates that there are numerous instances where the term de-oraita indicates a concept that is either rabbinic in nature or that the law under discussion is hinted at in the Biblical text, using the passage as an asmakhta (“support” – i.e. a verse used as a mnemonic to remember a law, or to lend it Biblical credence, but not as the actual derivation of it). In his entry on the Aramaic term de-oraita, the Sedei Hemed writes as follows:

י״ט דאורייתא – מצינו דנאמר לשון זה על דבר שאינו מה״ת ור״ל שיש לו סמך באורייתא כ״כ מרן הב״י יו״ד רסי׳ קפ״ד ד״ה ובשעת וכו׳ במ״ש התוס׳ והרא״ש וסמ״ג דפרישה שסמוך לוסת דאורייתא עי״ש וכיוצא לזה כתב הר״ב הדרישה ביו״ד רס״י קפ״ג ע״ד מרן שכ׳ דין תורה וכו׳ עי״ש וכן מצינו שכתב מרן הב״י א״ח סימן תי״ח סוד״ה ויחיד דמ״ש בש״ס גבי ר״ח דאורייתא הוא  ר״ל שנרמז אסמכתא שלו בתורה עי״ש ועיין ש״ך ח״מ סי׳ כ״ח ס״ק י״ד דבין להרב מגילת אסתר בין להרמש״ך כי אמרינן בעלמא דאורייתא שלא בלשון תמיהא דאורייתא היא וכו׳ אפ״ל שהוא אסמכתא גם הרב עפרא דארעא ע״ד הרב ארעא דרבנן במ״ב אות קמ״ד כתב דמ״ש רש״י שבהרי״ף במס׳ ביצה דף ל״ז במקח וממכר בשבת הוא איסור דאורייתא לאו דוקא דהא ודאי אינו אלא מדרבנן ובמכתב לחזקיהו בחלק השיטה דף מ״ב ע״ב כ׳ בשם הרב מחזה אברהם שצדד לפרש מ״ש הרב רבנו יונה בפ״ג דברכות שהוא מן התורה דר״ל דנרמז בתורה ושסיים שזה דוחק וכ׳ ע״ז במכתב לחזקיהו דכיון דמבואר בדברי הרמב״ם שהוא מדבריהם תנוח דעתינו לפרש גם דברי הרר״י שיהיו  מוסמכים לסברת הרמב״ם עי״ש ויש סעד לזה דהא חזינן דרבנן קדישי הנז״ל ניחא להו בהני ועיין במה שכתבתי במערכת הבי״ת אות קט״ז (בד״ה ולכן) ובאות קי״ו וגבי מלאכה בחוה״מ דאורייתא יש מן הראשונים שפירשו דהכונה לומר שיש לה אסמכתא בדאורייתא עיין להרא״ם בס׳ יראים סי׳ קי״ג ובהג״מ פ״ז מהלכות יו״ט והרא״ש בריש מס׳ מ״ק ותוספות בחגיגה דף י״ח ד״ה חולו:

19: De-oraita (דאורייתא) – We find that this language is used to describe matters that are not min-hatorah, but only that the Gemara wants to say that it has a support in the Torah. This is what maran the Bet Yosef wrote in Yoreh Deah at the beginning of siman 184 (beginning with the words “And at the time…”) with respect to the rulings of the Tosafot, the Rosh, and the Sefer Mitzvot Gadol (Semag) in regard to the mandatory sexual separation just prior to the expected onset of the menstrual cycle, as determined by a woman’s veset (וסת), being de-oraita (דאורייתא) – see there. Our blessed teacher, the Derishah, writes similarly in Yoreh Deah (at the beginning of siman 183) regarding the opinion of maran (the Tur) that such separation prior to menstruation is “a law of the Torah…” – see there. We also find that maran the Bet Yosef writes in Orah Hayim 418 – at the end of the section beginning with “And the individual…” – that what it says in the Gemara regarding rosh hodesh, i.e. that it is de-oraita (דאורייתא), is only the Gemara wanting to say that its asmakhta is only hinted at in the Torah – see there. And look at the Shakh in Hoshen Mishpat 28:14 where according to both the author of the commentary known as Megillat Ester and the Shakh himself, there is a principle of Talmudic interpretation that when it says that something is “de-oraita (דאורייתא),” and is not saying so while asking a question, then it is possible to interpret it as indicating an asmakhta. Also the Afra De-Ara, in commenting the opinion of the Ara De-Rabbanan in 42:144, writes that what Rashi wrote on the Rif in tractate Beitzah (folio 37) that when it states that conducting business on Shabbat is “a Biblical prohibition” (isur de-oraita איסור דאורייתא) it is not necessarily so since it is clearly only rabbinic in origin and the Scriptural verse only comes to strengthen it. In Helek HaShitah 42b, it states in the name of the Mehazeh Avraham that he takes the position on the meaning of what Rabbenu Yonah writes in the third chapter of Berakhot when he says that it is min-hatorah (“from the Torah”) that he wanted to say that it is hinted at in the Torah, not that it is actually a law of the Torah. And he concludes by admitting that this is a strained interpretation of Rabbenu Yonah, but that it is reasonable to appeal to this idea that “the Scriptural passage only comes to strengthen it,” since, being that it is explicit in the words of the Rambam that it is rabbinic in origin, we are comfortable in our opinion that the words of Rabbenu Yonah are in agreement with the reasoning of the Rambam – see there. And there is a further support for this in the fact that we observe that the holy masters mentioned above are also comfortable with this interpretation. And see what I have written in the second volume of this work in sections 115 (beginning with the words “And thus…”) and 116. Regarding what is stated in the Gemara about melakhah on holo shel mo’ed (b.Mo’ed Katan 11b) where it says, “The laws of avelut (‘mourning’) are rabbinic, melakhah on holo shel mo’ed is Biblical (de-oraita דאורייתא).” There are those among the rishonim that maintain that the intention of saying that it is de-oraita (דאורייתא) is to indicate that it has an asmakhta from what is written in the Torah, not that it is necessarily a Biblical law. See Rabbi Eli’ezer of Metz in the Sefer Yere’im #113, the Hagahot Maimoniyot on Hilkhot Yom Tov chapter 7, the Rosh at the beginning of tractate Mo’ed Katan, and the Tosafot on b.Hagigah 18, beginning with the words “The intermediate days…”

It is abundantly clear from the exposition of the Sedei Hemed that the term de-oraita (דאורייתא) does not always indicate a Biblical law, but often refers to a rabbinic law that has an allusion within the Biblical text. In my humble opinion, I believe that this is exactly how de-oraita (דאורייתא) in the b.Ketubot 72a-b is properly understood. In fact, I do not believe that it is possible to coherently read it in any other fashion, given the explicit wording of the Mishnah. Apparently, I am not alone in this contention, as Rashi there writes in response to the opening assertion that “An uncovered head is de-oraita (דאורייתא)” that “…if this is so then why did the Mishnah not call it dat Mosheh?!?” (72a). In other words, if going out with an “uncovered head” is a prohibition that is Biblical in nature, then why didn’t the Mishnah list it under dat Mosheh instead of dat yehudit? Note this well, as it is very important.

We should hereby take notice of two things:

  1. The phrase de-oraita (דאורייתא) is equated to dat Mosheh (at least possibly) by Rashi (the Rambam and other rishonim incorrectly make this leap as well, as we will see).
  2. With the language of the Mishnah immediately available, it seems incredibly unlikely that the Gemara, if it desired to argue that covering the head was not dat yehudit, would not just simply say something like, “The Mishnah is incorrect. It is dat Mosheh”? Instead the Gemara uses the somewhat generic term “de-oraita (דאורייתא)” and makes not mention whatsoever of a supposed recategorization of what is stated in the Mishnah with regard to haircovering in public. Not only this, but as noted above, the Gemara readily uses the cognate term dat yehudit not once, but twice.

The Mysterious Kalatah

Much of the discussion around this passage of the Gemara hinges on the definition and identification of the word kalatah (קלתה), referred to three times. Rashi (72b) identifies it as a small basket used by women for carrying goods – mostly likely the Grecian work basket known as a callathus. The Rambam identifies it as a mitpahat (“kerchief” – cf. Mishneh Torah, Hilkhot Ishut 24:9), and other rishonim similarly identify it with some sort of cloth. This is most probably due to the reference of a “scarf” in the Tosefta being removed from the head of the sotah (see below), but this doesn’t necessarily make sense since the Gemara in Ketubot since it is not discussing the sotah ritual at all. What is the common thread driving these various identifications? It seems to be their relation of the Aramaic word kalatah to a Semitic root meaning “woven.”

There are several difficulties with these identifications, however, that occur to me:

  1. If it is a basket, then what does that have to do with the shaming of the sotah in Bamidbar 5:18? Does the kohen remove a basket from her head? Certainly not. Additionally, the Tosefta in t.Sotah 3:1 specificies that in those days the kohen removed a tza’ifah (צעיפה – a “scarf”) from the head of the sotah, not a kalatah.
  2. What are the descriptive parameters of such a basket, scarf (צעיפה), or kerchief (מטפחת)? If kalatah was meant to refer to any of them, then why did the Gemara not simply use those terms?
  3. Assuming the presence of a cloth or kerchief on the head in b.Ketubot 72a-b due to an implication drawn from the use of para’ during the sotah ritual, inevitably leads to the further assumption of other headgear (and perhaps even a series of garments, as will be shown) by logical extension. Other headgear is not mentioned by the Gemara, and adopting such a line of reasoning seems to be an overly-complicated solution to enlist in simply defining a single word.

Rabbi Ya’akov Reischer (1661-1733), in his responsa collection entitled Shevut Ya’akov (1:103), suggested the unique position, accepted by several major halakhists (including Rav Yosef Messas z”l), that kalatah (קלתה) means “braids” or “braiding.” He relates the Aramaic word kalatah (קלתה) to the Hebrew word keli’ot         (קליעות). This identification makes natural sense in the context of the sotah, since the Mishnah says in b.Sotah 7a that “ufara’ – and the kohen uncovers” means that “he undoes her hair” and Rashi explains that “undoing the hair” means “from its braids (מקליעתו) – as the Gemara will explain below” (see 8a).

It seems clear, then, that kalatah here is a reference to the woman’s hair while braided and/or tied upon her head, apparently even without a covering over the top of them (e.g. a scarf, hat, etc.). This understanding of the word kalatah is also maintained by the Magen Avraham (Rabbi Avraham Gombiner, ca. 1635-1682), as is referenced in the teshuvah of Rav Messas z”l on this topic, referenced above in the introduction.

 

The Meaning of “An Uncovered Head”

It is seemingly taken for granted by many commentators that the meaning of word para’ (פרע) is “uncovered.” This, however, is not true – or, at least, not completely. What para’ clearly means – both in Biblical and Rabbinic usage – is “loose” or “unrestrained,” and has the connotation of hair that is uncovered and unkempt.

Here are examples of Biblical usage with regard to hair:

  1. Vayikra 21:10 – The kohen gadol is not allowed to grow his hair “long” (and unkempt).
  2. Bamidbar 6:5 – The hair of the nazir is supposed to “grow wild” throughout the nazarite vow.
  3. Devarim 32:42 – Enemies described as having “long/wild hair.”
  4. Yehezkel 44:20 – The kohanim not allowed to either shave or let their hair grow “long/wild” (i.e. unkempt).

Examples of para’ not in reference to hair:

  1. Shemot 32:25 – Mosheh saw that the people had “gone wild” or “become unrestrained” during the worship of the golden calf.
  2. Mishlei 29:18 – Without prophecy, the nation is “unrestrained,” “loose,” or “disorganized.”

In rabbinic usage, the meaning of “loose,” “unrestrained,” “unkempt” is also maintained. Tractate Ketubot (15b, in the Mishnah there) discusses a virgin bride on her wedding day leaving her special canopy on the way to the huppah while “her head is ‘uncovered’” (roshah parua’ – ראשה פרוע), signifying that this is her first marriage. Both Rashi and the Tosafot HaRid explain that this means that her hair is loose and “upon her shoulders.” They further explain that this is the custom of how a virgin bride wears her hair when she is escorted from the house of her father to the house of her new husband.

Rashi makes a blanket statement in b.Sotah 8a regarding the word para’ (פרע), which would seem to contradict a simple reading of “loose.” He says:

ופרע: בכל מקום לשון גילוי הוא

And he loosens: In every place it is the language of revealing.”

This is somewhat of an odd statement by Rashi, especially in light of his other explicit statements about the meaning of Bamidbar 5:18 to the effect that para’ means “to loosen hair from its braids.” It seems clear, however, that para’ in the context of the sotah ritual implies the entire act of removing the covering from the head, revealing the hair underneath, and then proceeding to dishevel it so it rests loosely across the shoulders.

Putting It All Together

With the language of the Torah and the Gemara clarified, it is now possible to suggest a more cohesive reading of the Talmudic text. What I suggest is as follows:

ואיזוהי דת יהודית יוצאה וראשה פרוע:  ראשה פרוע דאורייתא היא דכתיב ופרע את ראש האשה ותנא דבי רבי ישמעאל אזהרה לבנות ישראל שלא יצאו בפרוע ראש [אמר רב יהודה אמר שמואל – רי״ף] דאורייתא קלתה שפיר דמי דת יהודית אפילו קלתה נמי אסור אמר רבי אסי אמר ר׳ יוחנן קלתה אין בה משום פרוע ראש הוי בה רבי זירא היכא אילימא בשוק דת יהודית היא ואלא בחצר אם כן לא הנחת בת לאברהם אבינו שיושבת תחת בעלה אמר אביי ואיתימא רב כהנא מחצר לחצר ודרך מבוי

TRANSLATION (RESEARCHED):

“What is considered a violation of dat yehudit? If she goes out in public and her hair is loose and upon her shoulders: The idea that it is shameful for a woman to have her hair loose and on her shoulders is alluded to by the Torah, as it is written, ‘and the kohen shall loosen the woman’s hair from its braids and let it rest upon her shoulders.’ And the School of Rebbi Yishmael taught that this passage is a warning to the daughters of Israel (i.e. Jewish women) not to go out in public with their hair loosened and unkempt. Rabbi Yehudah said in the name of Shemu’el, ‘From the simple implication of the Torah, having her hair up and braided while in public is permissible, but according to the custom of Jewish women even hair while braided is forbidden to be worn in public (i.e. the braids need to be covered as well with some sort of hat or kerchief).’ Rav Asi said in the name of Rebbi Yohanan, ‘While her hair is braided, we do not consider a woman to have infringed on the prohibition of having her hair loose (i.e. she cannot be divorced without her ketubah as described in the Mishnah).’ Rebbi Zeira raised a difficulty with this statement, ‘Where is the statement of Rebbi Yohanan applicable? If we say that he meant in the open marketplace, then we already have a statement by Shemu’el that it is forbidden by the custom of Jewish women, and if he is referring to a courtyard, then we will not be able to allow a single daughter of Avraham Avinu to remain married to her husband (i.e. since there is hardly a woman who worries about her hair while in her private courtyard)! Abaye said – and some say it was Rav Kahana – ‘Rebbi Yohanan was referring to a woman going from] courtyard to courtyard by way of an alley.’”

According to the Gemara, nothing – not a covering and not braids – is required either within a house or a private courtyard. Braided hair – as opposed to it being down and loose upon the shoulders – is acceptable when briefly going between private spaces via a semi-public thoroughfare. Another covering, presumably a scarf or a hat, is required by standards of modesty practiced by Jewish women in the times of the Gemara. Although no such garment is specifically mentioned by the Gemara, it seems reasonable that Hazal assumed that the hair coverings used in each community by women – a practice that was nearly universal in the ancient world, especially in the Middle East and North Africa – would suffice to fulfill dat yehudit and thus did not require any sort of explicit mention or description.

This interpretation makes much more sense and requires the least amount of innovation an assumption on the part of the reader. It also leaves the entire concern of kisui rosh le-nashim under the rubric of dat yehudit, which is exactly where it is placed by the Mishnah.

I will now examine the parallel section of the Talmud Yerushalmi and consider the opinion of the Rambam, as codified in the Mishneh Torah.

 

The Talmud Yerushalmi

The text of the Talmud Yerushalmi is often terse, using language and terminology which is largely unfamiliar to the student of the Bavli – and this case is no exception. This is not to say, as is unfortunately commonly the case among halakhists, that it should be disregarded or that it is somehow not useful as a halakhic source (halilah). To the contrary, the Talmud Yerushalmi is extremely valuable source and very important for many reasons. However, due to it being less-developed and less-studied throughout the centuries following its redaction, it often offers us less in the way of explanation than does the Bavli (and in some cases no explanation at all) – but this is certainly not always the case. So, for the sake of being thorough and in order to properly honor the hakhamim of Eretz Yisra’el, what follows is a brief examination of y.Ketuvot 7:6, which contains the following passage:

וראשה פרוע לחצר אמרו ק”ו למבוי רבי חייה בשם רבי יוחנן היוצאה בקפלטין שלה אין בה משום ראשה פרוע הדא דתימא לחצר אבל למבוי יש בה משום יוצאה וראשה פרוע יש חצר שהוא כמבוי ויש מבוי שהוא כחצר חצר שהרבים בוקעין בתוכה הרי הוא כמבוי ומבוי שאין הרבים בוקעין בתוכו הרי הוא כחצר:

“…and her hair is loose – This was spoken in reference to a woman being within a private courtyard, so all the more so (קל וחומר) should this be the case in an alleyway. Rebbi Hiyyah said in the name of Rebbi Yohanan, ‘The woman who goes out with her kaflatin (קפלטין), we do not considered to have transgressed the prohibition of having her hair loose in public (i.e. she cannot be divorced without her ketubah payment because of this).’ This is what you say with regard to a private courtyard, but in an alleyway we do consider a woman to have transgressed the prohibition of having her hair loose in public (i.e. even while wearing her kaflatin). There is a courtyard that is analogous to an alleyway – a courtyard into which the public traffic breaks. And behold there is an alleyway into which the traffic of the public does not break and it is analogous to a courtyard.”

Some differences – and possible similarities – with the corresponding section of the Talmud Bavli are as follows:

  1. Whereas the Bavli uses the word kalatah, the Yerushalmi uses another word altogether: kaflatin, a word that may possibly be in the plural. Both the Penei Mosheh and the Korban Eidah explain kaflatin (קפלטין) using the word mitpahat (מטפחת) and the Arukh brings an opinion that it is Latin for hanging curls of hair and a pe’ah nokhrit (פאה נכרית) which, according to some opinions, refers to a wig. The Me’iri, in his Bet HaBehirah on b.Ketubot 72a equates kaflatin (קפלטין) with the kalatah of the Bavli, which he views as being a kerchief (mitpahat מטפחת).
  2. Rebbi Yohanan, if we assume that this is the same statement as the one attributed to him in the Bavli, is understood here as explaining the law for a courtyard, whereas in b.Ketubot 72a-b it is determined that he is giving the law for briefly passing between courtyards via a semi-private alley.
  3. Perhaps the most obvious difference from the Bavli is that the Yerushalmi does not build its case from the parashah involving the sotah in Bamidbar 5:18. In fact, it makes no reference to it at all.
  4. The passage in the Yerushalmi ends by stipulating that the status of either a courtyard or an alleyway is subject to change on a case-by-case basis, depending of the amount of public traffic each receives. The Bavli makes no such stipulations.

Tzarikh Iyyun. (The matter needs further investigation.)

The View of the Rambam

Due to the historical centrality of the Mishneh Torah to halakhah, and due to the fact that many later halakhists and posekim have been influenced by the Rambam in their understanding of kisui rosh le-nashim, I will now examine his view.

Completely elucidating the opinion of the Rambam with regard to the issue of kisui rosh le-nashim, dat Mosheh, and dat yehudit is not the most difficult task at hand, however, as he clearly states his understanding of the halakhah in plain language. The most difficult task in regard to the Rambam is ascertaining how he arrives at his particular position from the text of the Talmud.

There is neither need nor space here to go through every detail that inherent in the view of the Rambam – which would be a major undertaking all by itself – but there are two main points I would like to address here which are directly relevant to this investigation:

  1. First, but not entirely relevant to the main point of our discussion here, is that in the Mishneh Torah, “dat Mosheh” does not only refer to things which are necessarily min-hatorah, but also includes things which are rabbinic in nature (as the Rambam highlights in Hilkhot Ishut 24), yet they are nevertheless thought by the Rambam to be based on actual directives of the Torah itself. This ambiguity as to the definition of dat Mosheh – i.e. that is not an exclusive reference to either Biblical or Rabbinic laws, but is used by the Rambam to designate both – is perhaps the central reason for the difficulties present in the Rambam’s expressed perspective vis-à-vis the text of the Gemara in b.Ketubot 72a-b.
  2. Second, and most important to our discussion, is that while the Mishnah clearly lists “going out with an uncovered head” in the category of dat yehudit, the Rambam lists it under dat Mosheh (cf. Hilkhot Ishut 24:9), creating an entirely different category for what constitutes a violation of dat yehudit, namely going out without a full-body cloak, known as a radid (רדיד) which is analogous to the khimaar (خمار) or abaayah (عباية) worn by Muslim women (cf. Hilkhot Ishut 13:13; 24:11 and Shir HaShirim 5:7). The Rambam’s understanding of dat Mosheh is based on his own perception of a requirement in the Torah for women to wear a headscarf called a mitpahat (מטפחת – cf. Hilkhot Ishut 24:9). From this, it becomes clear that the Rambam relates dat Mosheh and dath yehudit to two different garments, each increasing in their level of coverage, respectively. But his derivation does not stop there since, as we will see shortly, the Rambam assumes the presence of yet a third garment.

It is my firm contention, and I am not alone in this reading of the Rambam, that he reads articles of women’s clothing into the text of the Gemara, garments commonly worn by women in the Arab-Muslim world in which he resided. The section of the Mishneh Torah that bears this out most clearly is in Hilkhot Sotah 3:5, where he describes the shaming of the suspected adulteress as follows:

וכל איש שיחפוץ לבוא ולראותה יבוא ויראה והיא עומדת ביניהן בלא רדיד ולא מטפחת אלא בבגדיה וכופח שעל ראשה כמו שהאישה בתוך ביתה

“…and any man who so desires to come and see her comes and sees her, and she stands among them without a full-body cloak, without a headscarf – nothing except for her clothes and the cap which is upon her head, just as a woman is dressed while within her house.”

Neither the full-body cloak nor the cap are legislated anywhere in the Gemara as necessary attire for Jewish women. These garments do, however, directly correspond to Islamic attire in the 12th century. Only the headscarf mentioned by the Rambam has any basis in the Talmud, and this is only the case when one equates the kalatah or kaflatin of Hazal to a mitpahat.

The following two tables show the series of Islamic garments assumed by the Rambam in the Mishneh Torah, and their relationship to the text of the Gemara:

Table 1.1

Headcoverings in the Mishneh Torah as Postulated by the Rambam

Public

(dat yehudit)

Courtyard/Semi-Public Alleyway

(dat Mosheh)

Private

(inside the house)

Full-body Cloak (רדיד)

Headscarf (מטפחת)

Headscarf (מטפחת)

Cap (כופח) Cap (כופח)

Cap (כופח)

Sources:

Full-body Cloak (רדיד) – Hilkhot Ishut 13:13, 24:11

Headscarf (מטפחת) – Hilkhot Ishut 24:9

Cap (כופח) – Hilkhot Ishut 13:1; Hilkhot Sotah 3:5

Table 1.2

Headcoverings – Rambam vis-à-vis Gemara

Full-body Cloak (רדיד) Not mentioned
Headscarf (מטפחת) = kalatah (קלתה)?
Cap (כופח) Not mentioned

The assertion that the Rambam assumed Arab norms of dress and modesty, reading it back into his understanding of the Gemara, is incontrovertible. The kupah (כופח), a small “cap” similar to what many Arab-Muslim women wear under their hijaab (حجاب), is mentioned by the Rambam as part of the kesut (“clothing”) that a husband owes his wife according to halakhah (cf. Hilkhot Ishut 13:1), yet, as was mentioned previously, no reference to this garment or the full-body cloak (radid רדיד), however, exists in the words of Hazal.

As an aside, it would seem that is incumbent on ardent “Rambamists” to deal with this reality. To be intellectually honest, they must admit that the construct – as presented in the Mishneh Torah and displayed in the tables above – is derived independently of Talmudic law and only alludes to it in a cursory manner, if at all. All of this is said, of course, with only the greatest respect and honor for the Nesher HaGadol, Rav Mosheh ben Maimon z”l.

Practical Summary

In response to the questions posed in the introduction:

Where were Jewish women required to cover their hair in the times of the Gemara?

In the times of the Gemara, when it was the standard “custom of Jewish women,” they were only required to cover their hair in the public sphere (“the marketplace”) and partially – or perhaps just braided and not covered – in a semi-public place (“an alleyway”). And these places, if frequented by the public may also be places where it is required for a woman to cover their hair (Yerushalmi).

What type of covering is required?

A type of covering required to be worn on a woman’s head is never specified by Hazal. Apparently there is a partial type of covering (or, again, more likely not a covering but a woman’s hair being braided), a mysterious object referred to as a kalatah. The required size, material, shape, etc., however, is never mentioned for the kalatah.

How much hair needs to be covered – every single hair, most of it, part of it?

The amount of hair required to be covered is never explicitly discussed in either the Mishnah and the Talmud.

What is the purpose for covering the hair according to the halakhah?

The purpose for covering the hair was for modesty and propriety because it was “the practice of Jewish women.” Rabbi Yishma’el only says that the pasuk in the Torah referring to the hair of the sotah is only a “warning” (אזהרה – azharah), not an actual law. Neither the Sanhedrin nor any other bet din ever ruled on this. The courts only upheld the common practice of women, just as they upheld common practices when it came to hiring day-laborers and other halakhic matters tied to the cultural context of a particular place and time.

The reason that Jewish women covered their hair in the ancient world was because it was the custom of women in nearly every culture in those times to do so. This is the reason why it was not necessary to make it a law in the Torah or for Hazal to make it a formal ruling. Since the Torah only mentioned it without making it a law, Hazal did not feel it was necessary to legislate every detail of feminine modesty, but only to enforce the sentiments of propriety for married women in that time. Since the cultural sentiment of modesty at that time included women covering their hair while in public, and that not doing so was considered shameful and lewd, Hazal entitled a husband at that time to divorce his wife, should she carry herself that way in public, because it was socially embarrassing. This would also have also been the case, according to the Mishnah, for women who carried on conversations with men who were not their relatives, but today since women and men talk normally in public, no bet din would grant a divorce without a ketubah payment for this reason.

Other things we know:

  1. The covering of hair by women is specifically listed by Hazal under the category of “custom” and not “law,” the Mishnah explicitly calling it dat yehudit and not dat Mosheh. Placing it under “dat Mosheh” is a misreading of the Gemara by the Rambam (and those who followed him in his error) which was apparently motivated by Islamic cultural norms.
  2. We also know that covering the hair can no longer be considered “the custom of Jewish women” today. Nothing proves this more than the widespread custom of Haredi women to wear wigs in order to “cover” their hair. There is no difference, in either reality or halakhah, between a woman’s hair and a wig. (Important note: a pe’ah nokhrit is not a sheitel, and notice that the Gemara in doesn’t mention one either – cf. Gra, Shenot Eliyahu on Shabbat 6:5). The only fact that the widespread use of sheitels has proven is that even the most stringent sectors of orthodox Jewry have no social objection to women wearing a fashionable yet modest hairstyle in public.

Who is required to cover their hair today?

In reality, no one. As mentioned in the introduction, Rav Yosef Messas z”l has written an unassailable defense of women no longer being required to cover their hair in modern times. A full English translation of his teshuvah is appended to this essay. In it he explains that since covering the hair was merely a custom of Jewish women which was tied to the broader context of feminine modesty in that time and place, and since the societal norms have changed, the halakhah has also changed in this matter – uprooting and nullifying the previous practice.

Final Thoughts

A great deal more could be written on this subject from the standpoint of halakhah, but perhaps more important is the overarching religious philosophy connected to it. In other words, what are we trying to accomplish and what is the reality before us? These are central questions that demand a cogent and coherent answer.

When women today are asked why they cover their hair, they usually respond that it has little or nothing to do with actual “tznius” (modesty). When asked how wearing a wig – or even covering their hair in the first place – makes them more modest than the next woman who doesn’t, many women will respond that they don’t think that a woman with uncovered hair is acting less modestly at all. Instead,  out of a human need to have one’s deeds be meaningful, they propose new definitions of modesty, such as “modesty does not mean being unattractive or hiding beauty” which of course cannot be true as this is exactly what the concept of modesty was in the ancient world, and to a certain extent it still is. In fact, the word for “modesty” (צניעות) comes from a root meaning “hidden” or “to hide.” Other times, women will express how covering their hair is a personal choice that helps remind them of their “submission to God.” This certainly a nice and meaningful idea, but really has no source in Hazal. Lastly, and this is especially true when discussing wigs, women often give kabbalistic reasons why they cover their hair such that it guards their husband and children from calamity or poverty. All of this serves to highlight the astuteness of Rav Messas’ observation that the status of women’s hair in our modern world has completely changed from how it was viewed socially in previous eras and in ancient times. Because it is not seen as anything other than a personal religious choice, and one which no longer contains any real moral value (only social implications), new reasons for continuing the practice of covering the hair in public were to be sought out.

The next question should be: What is the goal given that this is the reality before us? Is the ultimate goal a recreation of the past? Is it to re-invent the original rationale behind Jewish practices? Is it to somehow pretend that cultural norms in this area haven’t changed? As I have said before, other than examining the halakhah honestly, which is the duty of Jews for any given topic of Jewish law and tradition, I do not believe that women’s modesty really even needs to be on the halakhic docket. The reason I say this is that never in my life have I met an honestly religious woman who was not generally modest in either deportment or attire. Women already have an innate sense of propriety within moral cultures and so there seems to be little need for Jewish men to worry about it. Perhaps this is why the Sanhedrin never formally ruled on this matter, but simply chose to uphold “the custom of Jewish women.”

With sincerity of heart according to what my eyes have seen,

Yehudah Barukh Ilan

First Review of Rav Messas’ Teshuvah in Translation

“Excellent translation and commentary. Yishar koach for your important work…”

– Rabbi Haim Ovadia, leader of Magen David Sephardic Congregation in Rockville, MD

If you have not yet read the translation of Rav Yosef Messas’ teshuvah on the subject of women’s hair coverings – available only on Forthodoxy.org – you may download it HERE.

Teshuvah of Rav Yosef Messas z”l on Women Covering Their Hair

When it comes to the discussion of whether or not women are required by halakhah to cover their hair in public, there is perhaps no teshuvah (halakhic responsum) more referenced or discussed than that of Rav Yosef Messas z”l (1892-1974), who served as a rav in Morocco, Algeria, and Israel (Haifa). The reason for this is that he presents a cogent and cohesive argument on the basis of the Mishnah, Gemara, and the works of several rishoniym that Jewish women today are not halakhically required to cover their hair.

Its Hebrew text has been transcribed on a host websites and forums, but the content has been largely inaccessible to most due to both language and learning barriers. Written in a thoroughly rabbinic style and containing text in both Hebrew and Aramaic, this brilliantly written letter in its original form is a challenging text even for those who are able to read and understand Hebrew. But now, for the first time ever, the entire teshuvah has been translated beautifully into English, complete with supplementary and explanatory footnotes. This expansive translation is extremely readable and easy to understand with all Biblical, Talmudic, and halakhic references noted.

The PDF is available for download HERE

If you have benefited from this resource and the other content posted here on the site, I would ask you to consider making a donation to Forthodoxy.org using the button below. Thank you.


Donate Button with Credit Cards

Comments and feedback are welcome and appreciated!

Counting the Omer – A Meqori Perspective

Sefiyrath Ha`Omer – A Relatively Simple Misswah

The Torah, in Wayyiqra 23:15, commands us as follows:

TEXT –

וּסְפַרְתֶּם לָכֶם מִמָּחֳרַת הַשַּׁבָּת מִיּוֹם הֲבִיאֲכֶם אֶת-עֹמֶר הַתְּנוּפָה שֶׁבַע שַׁבָּתוֹת תְּמִימֹת תִּהְיֶינָה

TRANSLATION –

“And you shall count for yourselves, [beginning] from the day after the [festival] sabbath, from the day that you bring the `omer-offering of waving – there shall be seven complete weeks.”

From this pasuq, Hazal taught – among other things – that each male of Kelal Yisra’el, beginning with the second night of Pesah, needs to begin counting (vocally, and with a berakhah) seven weeks (49 days), after which would be the festival of Shavu`oth. Although we cannot currently offer the `omer, we nevertheless count the days and weeks as was done in the days of the Beth HaMiqdash.

What Does It All Mean?

Usually around the time of sefiyrath ha-`omer we begin hearing the kabbalistic buzz of latter-day interpretations of these 49 days, seven weeks. Everything from combining supposed “sefiros” to “tikkun ha-middos” is mentioned in Jewish books and religious newspapers. Some even relate it to the “49 levels of tumah” that are mentioned in the Tiqquney Zohar.

The truth, however, is that the Gemara merely states that it is “zekher le-miqdash – a remembrance of the Temple” (b.Menahoth 66a) and nothing further. The Rambam in the Moreh HaNavokhiym (III:43) expands on this idea and tells us that it is a “countdown” to the anniversary of the Matan Torah (“the Giving of the Torah”) and that, just as one counts the weeks, days, and hours before the arrival of a dear friend, so also does the Jewish nation build anticipation toward Shavu`oth by counting these seven weeks of days.

Traditionally, the anticipation of receiving the Torah “anew” – as it were – has generated a focus on teshuvah and the improvement of the miyddoth (character traits). This is an excellent idea, but unfortunately it has taken on a flaky mystical focus and any real personal growth is usually overshadowed if not forgotten. Le-`aniyuth da’ati (in my humble opinion), I think that the best and most productive tradition in this vein in that of learning a chapter a week of Pirqey Avoth. I also would HIGHLY recommend learning a chapter each day of Hilkhoth De`oth (laws of character development) from the Mishneh Torah, and I consider it no accident that it too contains exactly seven chapters.

Focusing on one’s miyddoth before receiving the Torah is completely appropriate since the halakhah states that Torah is only to be taught to a student whose character is refined and whose deeds are good (cf. Mishneh Torah, Hilkhoth Talmudh Torah 4:1).

The Rambam in the MT: Just Two Short Halakhoth

Did you forget to count at night? Did you forget to count an entire day? Did you forget more than one day? Do you make a berakhah during the day? Can you make a berakhah if you forgot a day? These and other considerations are the common discussion points of the obligation to count the `omer today. The entire conversation has become one infused with many doubts due to a lack of confidence to decide the actual halakhah and has also become subsumed – as have many areas of Jewish law – in kabbalistic sentiments and concerns.

For all of the questions, doubts, and supposed halakhoth that can be found related to sefiyrath ha-`omer – comprising a veritable mountain – the Rambam in the Mishneh Torah dedicates only two to the subject. Two short halakhoth, placed in Hilkhoth Tamiydhiyn Umusafiyn (7:19-20 in the Yemenite [i.e. Correct and Uncorrupted] Editions), give the definition of one’s obligation, and they are as follows:

TEXT –

יט מצות עשה לספור שבע שבתות תמימות מיום הבאת העומר שנאמר “וספרתם לכם ממוחרת השבת” ומצוה למנות הימים עם השבועות שנאמר “תספרו חמישים יום” ומתחילת היום מונין לפיכך מונה בלילה מליל שישה עשר בניסן שכח ולא מנה בלילה מונה ביום ואין מונין אלא מעומד ואם מנה מיושב יצא

כ מצוה זו על כל איש מישראל ובכל מקום ובכל זמן ונשים ועבדים פטורין מספירת העומר וצריך לברך בכל לילה אשר קידשנו במצוותיו וציוונו על ספירת העומר קודם שיספור מנה ולא בירך יצא ואינו חוזר ומברך

TRANSLATION –

19 “It is a positive commandment [of the Torah] to count seven complete weeks, from the day that the `omer is first brought, as it says, ‘And you shall count for yourselves [beginning] from the day after the [festival] sabbath.’ And the commandment includes the counting of the days along with the weeks, as it says, ‘You shall count fifty days.’ And we count at the very beginning of the day, therefore we count at night, from the night of the sixteenth of Nisan onward. One who forgot and did not count at night should count during the day.

And we do not count except when standing [le-khatehilah], but if one counted while sitting then [bedi`avadh] he fulfills his obligation.

20 “This commandment is an obligation for every man of [Kelal] Yisra’el, and it applies in every place and in every time. Women and servants are exempt from sefiyrath ha-`omer. It is necessary to make the berakhah each night, ‘who has sanctified us with his commandments and has commanded concerning the counting of the `omer‘ before one counts.

[Bedi`avadh] if one counted without making a berakhah, he [nevertheless] fulfills his obligation and he does not go back and make the berakhah.”

The Rambam seems to hold the following:

[1] Only men are obligated to count the `omer. Women may [and likely should] count, but without a berakhah. There are opinions that include women fully in the obligation and allow her to count with a berakhah, but this position is not that of the Rambam and I myself do not hold this way. Although, as an aside, I have daughters who hold like me and do not count with a berakhah, another who does not count at all, and another who counts with a berakhah. It is important to me that my children do not feel too separated from their religious Jewish peers as that can be psychologically damaging. If I make distinctions between our family and others in our community in terms of practice, it is only in very foundational issues and the vast majority of the time these distinctions consist of hashqafic tenets (e.g. monotheism, superstitions, `avodhah zarah, “rebbe” worship, “gadolatry,” etc.) – making a berakhah when their hearts are happy and full to do the will of God, especially when they have on whom to rely, is not something that I insert myself too strongly into. I give them a pleasant and non-threatening explanation of how I hold halakhically and leave it at that. (This is good advice for the many meqori parents out there who tend to be too exacting and harsh on their children – believe me this does critical damage to their little psyches!)

[2] Both weeks and days must be enumerated. This is normative halakhah today and needs no explanation.

[3] Counting begins the second night of Pesah. This is normative halakhah today and needs no explanation.

[4] Counting is [le-khatehilah] done at night. This means after complete nightfall (sseth ha-kokhaviym) and no earlier. If one forgot to count at night, then they should still count during the day – and apparently with a berakhah. Although the position of the majority of later rishoniym and poseqiym is to count during the day only without a berakhah, there were Geonic opinions (such as the Halakhoth Gedholoth) who did not object to making the berakhah even during the day. It seems that this was also the opinion of the Rambam. In the style of the Rambam, if he felt that making a berakhah during the day was prohibited, then he would have said so – and he does not. It is important to note that Mori Yusef Qafih z”l interprets the Rambam as being of the position that the berakhah is not said when counting during the day, and since we do have a general halakhic principle of safeq berakhoth le-haqel (“in a doubt of the obligation to make a berakhah we always refrain”), perhaps this is the best course of action. After all, the Rambam states explicitly that the berakhah does not prevent one from fulfilling his obligation.

[5] Counting should be done while standing. As is clearly stated above.

[6] The berakhah is – ברוך אתה ה’ אלהינו מלך העולם אשר קדשנו במצוותיו וצונו על ספירת העומר

Forgotten Days

Although the Rasa”g (Rav Sa`adyah Gaon) in his siddur rules that one may continue counting with a berakhah through the entire seven weeks of the `omer, he does note that if one forgets to count the very first night then he cannot continue counting at all with a berakhah. This is because of his diyyuq of the word “temiymoth – complete” from the pasuq in Waiyyiqra (p. 155 – קנה).

The position of the Rambam in his teshuvoth (as brought there by Mori Yusef Qafih z”l in his commentary on the MT) is that one who forgets on any night, even the first, even if he misses multiple days, may upon remembering (or simply doing teshuvah, whatever the case may be) continue to count throughout the entire seven weeks with a berakhah. The Rambam adds, however, that one who forgets a day may not say the word “temiymoth – complete” in the declaration made on the last night of the `omer. The word “temiymoth – complete” is not said in the nosah of the Baladi Yemenite tradition, but rather the Aramaic word “shalmey – complete,” and it too should be avoided by one who forgot to count for an entire day during the `omer.

Enjoy your countdown to Shavu`oth. I will be posting about the contrived “holiday” of “Lag BaOmer” in the next post.

Until then, berakhoth le-kulam.

YB

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

Ovens, Steam, and Kashrut – 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.]

Ovens have been used by Jews since ancient times – and since ancient times they have been the topic of halakhic discussion and inquiry. However, much of the discussion surrounding their use found in the Talmud is referring to ovens as they once were: relatively small and made of earthenware (heres).

The halakhot related to the Talmudic oven – also called a tanur – rather than being properly assessed, have been simply extended by most posekim and have been projected onto modern ovens with little if any consideration being given to the obvious differences between them and their Middle Eastern counterparts. However, to act as if they are completely analogous or even mostly similar simply because they both are called “ovens” is a mistake. What follows assumes that the small ancient ovens of Talmudic times and our large home appliance ovens of today are similar in that they are both types of ovens – that is all.

The Big Question of Separate Ovens

The biggest question related to kashruth and the use of modern ovens is whether it is a requirement to have separate ovens for meat and dairy or whether it is permitted halakhically to use the same oven for both. Further, if it is permitted to use one oven for both meat and dairy foods, under what circumstances is this possible and what precautions (if any) must be taken when doing so?

The entire discussion (read, cause for concern) hinges predominantly on two basic assumptions: 

[1] That steam or condensation (zei`ah) presents a halakhic concern at all, and

[2] That modern metals such as aluminum or stainless steel are boleya or polet (capable of absorbing and giving taste).

As will be clearly seen, neither of these assumptions has a strong foundation in the sources of Hazal and neither presents any concern. Even if steam were genuinely a problem, it would only be an issue when in an enclosed, small space (cf. Arokh HaShulhan 92:55), something which is not the case for modern ovens which are vented and tend to be much larger than their ancient cousins.

While it is true that the Rama (Rabbi Mosheh Issereles) in the Shulhan Arukh (92:8) takes a strict position regarding steam (zei`ah), relying on a teshuvah of the Rosh (20:26) [who quotes a Mishnah in Masekhet Makhshirim (2:2)], the fact is that the sugyah in the Gemara which discusses the entire issue of an oven and kosher and non-kosher foods being cooked in it (cf. b.Pesahim 76a-b and y.Terumot 10:2),  does not even mention zei`ah at all. Instead, it concludes that reihah (aroma) is lav milta (“not a halakhic issue”). Further, it only mentions a case where kosher and non-kosher meat were cooked in the same space, simultaneously, and in close proximity to one another. The conclusion of Hazal is that even if two pieces of meat, one kosher and the other not, were being cooked next to each other in the same oven at the same time, it would only be prohibited mi-de-rabbanan (rabbinically), but only at the outset. They further conclude that if such a situation does arise, then the kosher meat is permitted to be eaten bedi`avad.

“Steam is never mentioned and aroma is considered a non-issue.”

The implication of this sugyah and its practical conclusion is that – as many modern posekim explain – it is permitted to cook or bake dairy and meat foods in the same oven, although not simultaneously, and it is not necessary to perform libun kal (i.e. heating it to a high temperature or “self-cleaning”) between each use, as long as it remains relatively clean. Even if the oven has been used to cook non-kosher food, it may be used to cook kosher food as long as it is likewise relatively clean (i.e. no visible grease or pieces of non-kosher food that will almost certainly spoil your kosher meal). This is the pesak of several noted Sefardi hakhamim.

The Talmud Yerushalmi

The Talmud Yerushalmi (cited above) records Rav Levi – the one whose opinion the halakhah follows with regard to reihah – as concluding that since it is not prohibited for the smell of kosher and non-kosher meat to mingle in the same oven while being roasted, it is therefore permissible to do so even le-khatehilah (“at the outset”). This, of course, is not the halakhah (cf. Rambam, Hilkhot Ma’akhalot Asurot 9:22), but it nevertheless gives us further insight into the very reasonable view of Rav Levi regarding kashrut and use of [ancient] ovens.

Baking Bread and Roasting Meat

As for the discussion of bread being baked in the same oven as meat is being cooked, Hazal forbade the eating of such a loaf of bread with kutah (a porridge containing dairy that was popular in the Middle East and Persia) because of concerns due to basar be-halavb.Pesahim 76b, see there. However, this is again talking about bread and meat being in the oven simultaneously, not one after the other (see also Hilkhot Ma’akhalot Asurot 9:22 – “…bread baked together with meat…”).

A Foundational False Equation

As is common in the methodology that underlies the Ashkenazi approach to halakhah, there is a false equation in the standard Haredi/Hasidic position between the laws of hekhsher/tumah va-taharah with the laws of kashrut. While there is some overlap, they are definitely separate, as anyone who comparatively reads Hilkhot Tumat Okhalin and Hilkhot Ma’akhalot Asurot will be able to easily ascertain. Thus, the reason why the Rosh had to bring a proof for his new proposal from m.Makhshirim regarding the condensation in a bath house being tamei is because the whole idea of steam is not considered an issue within the scope of kashrut and is never mentioned until the erroneous equation of these two areas of halakhah at a much later time in Jewish history. Hazal never make any such claim in the sources that they left to us.

There were, however, those among the Ashkenazim who understood this separation properly, such as the prominent student of Rabbi Hayim of Volozhin z”l, Rabbi Ya`akov ben Aharon Karliner z”l, who authored a collection of responsa known as Mishkenot Ya`akov wherein he states the following:

TEXT [MISHKENOT YA`AKOV 1:34]

Mishkenoth Ya3aqov I-34

[PARTIAL] TRANSLATION

“…rather, it is certainly the opinion of Rashi z”l that [condensation – zei`ah] is not considered a liquid at all, even in the matter of a prohibition, but [it is taken into account] only in matters of tumah and hekhsher just as we previously learned…rather, it is certain that condensation from steam does not ascend [from one substance] and descend [to be absorbed in another substance, thus becoming a concern] in matters related [to kashrut], and neither of them [i.e. steam nor condensation] is given the status of a liquid except in matters of tumah…”

We can see from here that there were indeed those in the Ashkenazi-Lithuanian camp who understood that kashrut, and particularly the laws of basar be-halav, is not a matter of “purity,” but is based on real principles of forbidden food mixtures, etc. In other words, whereas steam and condensation can certainly cause people (and objects) to contract ritual impurity (tumah), they are not considered to be a form of forbidden food mixtures which could even lead to a prohibition of eating them from the standpoint of the halakhah  – it is simply not an issue (unless you are a kohen or planning to visit the Temple complex).

Pottery vs. Glass and Metal

As for the kelim which are subject to beliyuth (absorption), the Gemara is largely discussing klei heres, which is porous pottery/adobe (cf. Rambam, Hilkhot Ma’akhalot Asurot 17:1f). Although metal and glass are discussed in the context of a Jew obtaining used dishes and utensils from a non-Jew, they are not given central attention as is earthenware. And even if it were, it would be a discussion of the rough casted metals of antiquity, such as iron or copper. Some today hold that modern metals (such as stainless steel or aluminum) are not boleya or polet and thus not subject to these laws anyhow. I would agree. Add to this that the Gemara explicitly states that beliyut is an observable phenomenon – not an imperceptible “state” (cf. b.Avodah Zarah 33b-34a) – and one may reasonably conclude that our metal utensils today, as long as they are completely cleaned and scoured of visible, palpable residue between uses, may be used for both meat and dairy foods. 

Another “halakhah” that many will be happy to never have to worry about again is the supposed need to be careful of the steam from pots on your stove-top rising and becoming condensation on the kitchen utensils hanging on hooks above it, as if there was such a thing as “meat steam” or “dairy steam.” The reality is that it’s no problem at all, as we have seen. So go ahead and hang that fancy kitchenware above your stove and never give it a second thought.

Swimming on Shabbat – Permitted or Forbidden?

A Litmus Test of Religiosity

Unfortunately, the question of whether or not it is halakhically permissible to swim on Shabbat has become yet another marker of one’s “frumkeit,” a basis upon which others may question their commitment to shemirat ha-mitzvot (the observance of the commandments). Like so many other humrot that have been contrived in the name of “custom,” this too has become a source of false religiosity and sinat hinam. Being explicitly permitted (given certain conditions) by the Talmud, the Rambam, and the Shulhan Arukh, those who declare it forbidden, whether they intend to or not, are essentially shaking their fingers condescendingly at Hazal and the Rishonim. Choosing to forbid what is permitted is just as detrimental as permitting the forbidden.

The Talmud Yerushalmi states in Masekhet Terumot (5:3):

TEXT

כשם שאסור לטהר את הטמא כך אסור לטמא את הטהור

TRANSLATION

“Just as it is forbidden to pronounce that which is impure to be pure, so also is it forbidden to pronounce that which is pure to be impure.”

The Sefer Ha-Tashbetz (siman 537) writes regarding this statement:

TEXT

כשם שאסור להתיר את האסור כך אסור לאסור את המותר

“Just as it is forbidden to permit the forbidden, so also is it forbidden to forbid the permitted.”

And this principle is affirmed by nearly all of the posekim, especially as concerns the determination of halakhah for the Jewish masses.

Swimming on Shabbath is Permitted

As it will be seen, swimming (under certain reasonable halakhic constraints and conditions) is permitted by the Gemara, codified by the Mishneh Torah, repeated by a plethora of Rishonim, and was even included in the Shulhan Arukh. With all due respect to kevodo ha-gaon ha-rav Feinstein z”l (and others – although Rav Feinstein is at least careful to note that me-ikkar ha-din swimming on Shabbath is mutar before stating that it is nevertheless the “custom” to forbid it), the apparent Ashkenazi standard of prohibiting the use of a pool on Shabbat – despite it being permitted explicitly by the sources – is dubious at best.

In the Mishneh Torah, the Rambam writes in Hilkhot Shabbat 23:5 –

TEXT

אין שטין על פני המים גזירה שמא יתקן חבית של שייטין: בריכה שבחצר מותר לשוט בה שאינו בא לעשות בה חבית של שייטין:  והוא שתהיה לה שפה מוקפת שלא ייעקר ממנה המים כדי שיהיה היכר והפרש בינה ובין הים

TRANSLATION

“We do not swim in [open, natural bodies of] water [on Shabbat]. This is a rabbinic decree lest one come to construct a barrel of reeds [i.e. for a flotation device]. A [man-made] pool inside of a courtyard is permissible to swim in as long as it has a lip surrounding it so that the water cannot run out of it [onto the ground around it], and in this way there will be a definite distinction between it and the sea.”

From here it clearly seen that it is indeed permissible to swim on Shabbath, provided that it is in a pool with a rim.

[See also Arokh HaShulhan, Hilkhot Shabbat, siman 339, se’if 4 for a fuller explanation of the halakhic difference between swimming in a river or lake and swimming in a pool.]

Halakhic Issues and Objections

Now, beside swimming itself there are several other issues raised by the occasion of swimming that carry with them some halakhic concerns, both regarding the laws of Shabbat and otherwise:

1. Swimming attire – In ancient times, swimming was done without a bathing suit. In other words, the one swimming would do so while nude. Therefore, this halakhah is likely dealing with such a scenario. Given the prohibition on kibbus (laundering), how can one wear an article of clothing while in the water, doesn’t this constitute kibbus?
2. Wet hair – We know that it is prohibited to wring out we things on Shabbath (sehitah as a derivative of the melakhah of dishah – “threshing”), so wouldn’t wringing out wet hair fall under this category?
3. Tzeniut (modesty) – Is mixed bathing/swimming permissible? Can one go to a public pool on Shabbat?
4. Heating water – Most pools are heated and heating water is forbidden on Shabbat so is it prohibited to swim in a modern “heated” pool on Shabbat?

The answers to these concerns are a bit complex, but I will attempt to answer them here as concisely as I can.

A. There are many issues with regard to kibbus that could be discussed, but essentially the question is: On Shabbat may one get clothing wet and, if so, for what purpose? A clean suit worn into clean water is not considered kibbus since essentially nothing really happens. As for drying, the second part of kibbus, since people do not seek to immediately dry their suits but instead remove them while still wet which means that there is no issue here either. As for wringing out a bathing suit – as long as it is made of synthetic materials (such as polyester or nylon) there is absolutely no issue since we have a principle of “אין דישה אלא בגידולי קרקע – there is no concern for [the melakhah of] dishah [threshing] except with articles made of [plant] materials that grow from the ground” (cf. b.Shabbat 75a et al). Therefore, there is no prohibition of squeezing synthetic materials (more on this in the next section). And even if one were to wear cotton while swimming, it would be fine as long as one does not wring them out or squeeze them – provided that the swimming suit is clean and the water is clean. (For those who object, ask yourself if it is permitted to remove wet cotton clothes when caught in the rain on Shabbat. It certainly is. The halakhah does not require people to stay in uncomfortable clothing on Shabbat or any other day.)

B. Pursuant to the previous section, wringing out wet hair does not present a halakhic issue either. It states explicitly in Mishneh Torah (Hilkhot Shabbat 9:11) that there is no prohibition of “squeezing” or “wringing” (sehitah) with regard to hair or leather. There are those who maintain that the Rambam means to say that there is no issur of sehitah min ha-Torah, but that a mi-divrehem (rabbinic) prohibition still applies. This understanding of the Rambam, however, is incorrect, as is explained by the pirush of Rav Yosef Qafih z”l (there, #32). Thus, the hair or beard may be squeezed and wrung out on Shabbath without any concern at all, as can a swimsuit made of synthetic material (or one made of goat hair, but I haven’t seen any swimsuits like that yet!)

C. Mixed swimming is permissible since it occurs in context. Immediate family swimming together while clothed is perfectly fine. This may be derived from the laws permitting even kiruv basar while sleeping between nuclear family members in the same bed of the opposite gender. Once the child has shame, clothing or a blanket to separate between skin and skin is required. Swimming together while clothed in a private pool (without other, unrelated people) should be fine, and the small children who are still toddlers and unaware of their own bodies could swim in any bathing suit or even without clothing if necessary. [See MT Hilkhot Issurei Bi’ah 21:6-7, et al]. Also, going to a public pool may also be fine if one is accustomed to seeing people in bathing suits since this too occurs in context. If, however, someone finds that they are too distracted while in such a context then they may abstain from it. However, this does not change the permissibility of swimming in a public context for those to whom it does not present a problem provided, of course, that all other rules of decorum are maintained.

D. The prohibition to heat water on Shabbat is only in regard to the temperature of yad soledet bo (around 110 F). Thus, a warmed pool is not an issue. [See Arokh HaShulhan, Hilkhot Shabbat, siman 326 , se’if 3]

Swimming: Not in the “Spirit of Shabbath”?

There are many today who claim that swimming is not in the “spirit” of Shabbat. However, we must ask ourselves what it is that determines the “spirit” of any mitzvah. Is it the halakhah or how we feel? It seems that Hazal felt that the “spirit” of Shabbat is determined by the halakhah – i.e. through abstention from doing melakhah, refraining from discussion of melakhot, and through not doing things that may lead to melakhot. Swimming (within the guidelines set by Hazal) does not fit any of those descriptions. Instead, it seems that taking a permissible “dip” on the seventh day may actually fall into the category of oneg Shabbat (“Sabbath pleasure” – this view is expressed by Rav Yitzhak Abadi shlit”a, and may be found on his website kashrut.org).

The fact is that a great many Haredi-Hasidic Jews frequent heated mikvaot on Shabbat without even giving it a second thought. There is little or no practical difference between swimming and going to a mikveh, but feel free to present this point to Haredi or Hasidic Jews – it can be amusing to listen to their attempt to justify themselves.

Sadly, I have personally heard condemnations of religiously orthodox Jews by Haredi and Hasidic leaders sounded from the bimah simply because they choose to swim on Shabbat. Such people were described as “bodies without souls” and “destined for the dustbin of history” etc. simply because they choose to relax in such a [permissible] way on the seventh day. Such sentiments are pure sinat hinam, i.e. “hating” someone as if they are an open sinner when in fact they are not. The truth is, if someone doesn’t want to swim on Shabbat – despite it being explicitly permitted – then they should not swim. To put it another way: If you don’t like mayonnaise, then don’t spread it on your sandwich, but leave the jar out for those of us who want to.

[A helpful teshuvah on this subject by Rav Ratson `Arussi shlit”a – containing much of what has been explained here – may be found here.]