Responsa

CURR 36-38

CHANGING THE TORAH ROLLERS

There are two Torah rollers, Etz Chaims, which are no longer in use. The congregation desires to keep them in a case for historical purposes; but the rollers, in order to fit the case, need to be taken apart (i.e., the perpendicular part has to be removed from the plate). Is it permissible to do this? (From Rabbi Martin B. Ryback, Evansville, Indiana.)

THE question is, first of all, to what degree of sacredness are the etz chaims to be assigned? The Shulchan Aruch, Orah Hayyim 153 ff., discusses the disposal of sacred objects and in 154 discusses the various degrees of sanctity of sacred synagogue objects. It is evident that the parts of a Sefer Torah have a rather high sanctity. They are “appurtenances of sacredness” ( tashmishey kedusha) rather than the lower degree of tashmishey mitzvah. The ques tion, then, is what rights are there of the disposal of tashmishey kedusha, which the etz chaims clearly are. The Mogen Avraham (paragraph 14 to Shulchan Aruch 153) says that such objects may, of course, be sold by the consent of the leaders of the community (“the seven notables of the city”), in this case, of course, the Board of Trustees of the congregation. But although they may be sold and the money used, the objects sold nevertheless retain some sanctity.

Most of the later discussions are based upon this observation of the Mogen Avraham. The chief discussion is by Joel Ashkenazi, in his Responsa published in Muncazc, 1893, in which he deals with a case very much like the one with which you are dealing. In his Responsa ( Orah Hayyim 15) the following question is asked: A man donated a Sefer Torah to the synagogue; the etz chaims were of copper, but the Sefer Torah with the etz chaims of copper proved too heavy for use. The question asked was, what may be done with those copper etz chaims? Ashkenazi bases his discussion and his decision primarily upon the Mogen Avraham’s decision, cited above. He also cites Maimonides in Hilchos Sefer Torah X:4, to the effect that these appurtenances of the Sefer Torah are tashmishey kedusha and so, even when no longer in use, still have sanctity. However, though they still have sanctity, Ashkenazi continues, the officers of the congregation may remove them from their sacred use (if they are worn out). But since they still remain sacred, he suggests that some respected use be made out of these unused copper etz chaims. They could be cut up to make smaller etz chaims for smaller Torahs or be made into a copper menorah.

Shalom Mordecai Schwadron, the great Galician author ity of the last century, in his Responsa (IV: 135) cites this whole discussion with approval.

This applies to your problem in the following way: The Board of the congregation can decide that these etz chaims need no longer be used in worship, but they cannot strip them of their sacred status entirely. Is, then, the purpose for which you intend to use them a worthy one and in consonance with their residual sacredness? Certainly it is. To preserve them for historical purposes is certainly a worthy purpose. In fact, the law in Maimonides, which was cited above, says that they should be hidden away (ganuz) which is exactly what you are doing. Now, if in order to hide them away, it is necessary to take them apart, there is no objection to it. You will notice that Joel Ashkenazi, whose responsum is crucial in the whole discussion, would permit the cutting up of the copper etz chaims to make smaller etz chaims, or to remold them entirely to make a menorah.

Since the tradition requires that the change in the status of a sacred object be done by “the seven notables of the city,” i.e., the Board of the congregation, it would be in accord with the mood of tradition if a resolution be introduced at the Board meeting, and the Board pass a decision formally to make this change.

CURR 77-80

SEFER TORAH IN JAILS

The M. State Hospital for mental patients will have a chapel for Jewish patients. Someone stated that it is against Orthodox Judaism to have a Torah and an Ark in this chapel; that it would be a “desecration of the Torah to house it among mental patients.” Is this objection justified by Jewish legal tradition? (From Rabbi Harold L. Gelfraan, Maeon, Georgia.)

IT is a principle in Jewish law that just as it is wrong to permit that which is actually prohibited, so it is likewise wrong to prohibit that which is actually permitted. The legal literature constantly warns against adding prohibitions which are not justified. If, therefore, the person who said that it was “a desecration” to have the Sefer Torah in a mental institution is a scholar, please ask him for the basis of his opinion. I am not aware of any prohibition in the legal literature based upon the fact that the sick patients are insane and therefore no Torah may be housed among them.

These are sick people with various degrees of mental illness. The violent ones and those too deeply sunk inwardly will certainly not be permitted to attend services by the authorities. Those who will come to services are those who have various degrees of mental disturbance and certainly can understand the service, or part of it. The question is whether sick people may have the Torah brought to them, or whether they must wait until they are well to be able to go to the synagogue and hear the Torah read there.

This question of the Torah being brought to the sick was discussed as early as the sixteenth century by Meir of Padua, who says in his Responsum 88 that the only objection to bringing the Torah to the sick is if it is brought there on the day of the service merely for the purpose of the service; but if it is brought there a day or two previously and kept in an Ark, there is no objection at all. This has been codified in the Shulchan Aruch. The Shulchan Aruch in Or ah Hayyim 135:14 discusses the matter and combines the question of the sick with people who are kept in jail. While Joseph Caro himself says that we do not bring the Torah to people in jail, Isserles gives the later law which we follow, namely, that if the Torah is brought there previously and kept in an Ark it is quite permitted (see, also, Mogen Avraham, ad loc).

So it is clear that it is permitted to have a Torah prepared for the sick and for prisoners. But an additional question is involved in your question: During the week when services will not be held (or if they are held every day, then in the hours when the services are not held) the Torah would be in the charge of Gentiles. Is it permitted to put the Torah scroll in charge of the Gentile wardens all week? This question was discussed in great detail by Meir Arik, one of the great authorities of Galicia in the last generation, in his responsa Imre Yosher, II, 197:5. The question was asked by Rabbi Wolf Leiter of Pittsburgh. Rabbi Leiter was chaplain at the time at the Western Penitentiary on the outskirts of Pittsburgh. He had a Torah and an Ark in the chapel of the penitentiary, but asked the question of Meir Arik whether it was permissible to leave the Torah and the Ark under the care of Gentile wardens all week. Meir Arik connected this with the discussion in Yore Deah 291:2, whether a Jew moving out of a house in which a Christian will be the next tenant, may leave the mezuzah on the door (since it will now be under the care of a Gentile). Finally Meir Arik decided that if the Ark is well locked there is no objection to leaving the Torah under the care of a Gentile during the week.

So the law is clear: You may bring the Torah to the sick and to jails, especially if the Torah is kept there in an Ark. The Ark, if adequately locked, may be left in the care of the Gentile wardens.

CURR 38-41

HOW TO CARRY THE TORAH

“It occurs to me that the Torah is held on the left shoulder (heart side) if a person is right-handed and on the right side if a person is left-handed, following the custom of the Tefillin wrapping.” (From Dr. Floyd Fierman, El Paso, Texas.)

WHAT requirements, if any, are there in the legal literature with regard to how the Torah should be taken out of the Ark (i.e., with which hand, etc.) and how should it be carried to the reading desk? The analogy suggested in the question with the tefillin is a helpful one. The Talmud is very specific with regard to the tefillin. The tefillin shel yad shall be put on the left arm of a right-handed person and on the right arm of a left-handed person (b. Menachos 37a ff.). Some such parallel is indeed implied in some of the later legal literature with regard to handling the Torah, as will be seen. Of course there is this basic difference between the tefillin and the Torah: the tefillin are required to be worn by each person, but no one is required to have the Torah with him constantly except, perhaps, the king (see Deuteronomy 17: 18, 19). The king is required to have the Torah with him at all times, but Scripture does not specify how this Torah should be handled. As for the average person who comes into contact with the Torah only occasionally, there are certainly no legal specifications (in Bible or Talmud) as to how he shall handle the Torah.

While it is true that neither the Bible nor the Talmud has any requirement as to how the Torah should be handled, some such requirement begins to appear very soon in post-Talmudic times. The Tractate Soferim 3:10, a Gaonic tractate, states that he who hands a Sefer Torah to another man should give it with his right hand and the recipient should take it with his right hand. This requirement, if it can actually be called a requirement, is based on the verse in Deuteronomy 33:2: “From His right hand, He gave them a fiery law,” i.e., since, according to this poem, God gave the Torah with His right hand, we should always handle it with our right hand. Perhaps the next reference is in Sefer Chassidim (109) written in the Rhineland in the twelfth century, which quotes the statement in Tractate Soferim almost verbatim.

From this source the requirement of handling the Torah with the right hand found its way into the law gradually, apparently through the Ashkenazim. The classic Sephardic authorities do not mention it at all. Thus, there is no such requirement in the Tur (written by Jacob ben Asher in the fourteenth century in Spain) in Orah Hayyim 134, which would be the natural place to mention it since he speaks of taking out the Torah. Nor does Joseph Caro in his Bes Joseph, his great commentary on the Tur, make any reference to it. However, Moses Isserles of Cracow, in his commentary Darche Moshe to the Tur, quoting a Rhineland authority, Maharil (Jacob Moellin), says he should take the Torah with his right hand; but here he cites as a proof text, not the verse given in Soferim from Deuteron-omy, that God gave the law with His right hand, but the verse from Song of Songs 2:6: “With his right hand doth he embrace me.”

Likewise in the Shulchan Aruch, Joseph Caro himself makes no mention of which hand should take out the Torah from the Ark but, again, Isserles in his note does mention it. Furthermore, the latest authorities seem to bear in mind the analogy with the tefillin. Ephraim Z. Margolis of the last century, in his Shaare Ephraim (section 10) says that the man should take the Torah out with his right hand, but if he is left-handed, he should take it out with his left hand. The requirement of using the right hand (for average right handed people) has become a fixed rule with Ashkenazim at least, and is to be found in the two latest authorities in discussing this Shulchan Aruch section, namely, the Aruch ha-Shulchan by Jehiel Epstein and the Mishnah Berura by the Chofetz Chaim.

Now, having taken it out with his right hand, should he rest it on his left shoulder or on his right shoulder? In this regard there is not even a semblance of a requirement. There are two hints, but they seem to be mutually contradictory. If Isserles (and Maharil, his source) quote the verse from the Song of Songs, “His right hand embraceth me,” it would seem to imply that it should be the right hand which curls around the Torah and presumably the Torah then rests on the right shoulder. On the other hand, Dov Ber Reifman, in his classic work on the rules governing the Torah reading, Shulchan ha-Keriah, page 12, says that the man should indeed take it out with his right hand, but carry it against his heart ( k’neged libo). This would imply that when you take it out with your right hand, you rest it on your left shoulder against the heart. This procedure would seem to be the natural one, but there is no clear requirement with regard to it.

To sum up, then, there is no definite requirement in the Talmud as to which hand should take out the Torah; but based upon the post-Talmudic treatise Soferim, the Ashkenazim gradually developed the rule that the right hand should always take it out of the Ark (except for a left- handed man). As to which shoulder it should rest against, only the vague reference of Reifman (k’neged libo) and perhaps, too, the convenience of handling seems to require that it should rest against the left shoulder.

CURR 18-21

WHITE TORAH COVERS

The congregation has been using the customary red or scarlet velvet Torah coverings throughout the year, except that for holidays, confirmations, and bar mitzvahs they have been using the white Torah coverings. Is it permissible to have the Ark and the Torahs covered with white throughout the year? (From Rabbi Harold L. Gelfman, Macon, Georgia.)

I HAVE searched through most of the books of minhagim and I have not succeeded in discovering a single reference to a well-established custom that the Torahs should be covered with white during the High Holy Days. I know that this is the custom in many of our congregations, yet the very fact that the overwhelming majority of the books of minha-gim have no reference to this custom would indicate clearly that it is certainly not in any sense a requirement of the Halacha. This silence as to white coverings is rather remarkable when one considers that a number of other questions concerning the Torah coverings are discussed in the legal literature and are codified with considerable details in the Shulchan Aruch, Orah Hayyim 147. As for the curtain of the Ark, its status is not very firm in the Halacha except as a vague analogy to the curtain in the Temple in Jerusalem in front of the Holy of Holies. In fact, Maimonides, when he carefully discusses the appurtenances of the synagogue makes no mention at all of an Ark curtain. (See Yad Hilchoth, Tefillah XIV.) The same is true of the Tur and the Shulchan Aruch. (See Orah Hayyim 150.) Of course the Ark curtain has become customary, certainly since the sixteenth century, where it is mentioned in various responsa, but it has no legal status. For a full discussion, see Reform Responsa, p. 62 ff. Therefore, speaking from the point of view of the strict letter of the law, there is no ground for decision, prohibition, or permission with regard to the color of either the Ark curtain or the coverings (the mantles) of the Torah.

Since there is no strict legal basis for any decision, we must rely for our conclusion on whatever analogies are available. There is considerable discussion in the law making a connection between personal garments and the Ark curtain and Torah coverings. For example, there are many questions as to whether worn garments can be converted into an Ark curtain or Torah covering, or whether used-up Torah coverings should be made into shrouds for the dead and thus decently disposed of by burial. Hence, in order to come closer to our subject, it would be logical to consider the white garments worn on the holidays and to draw whatever analogy we can.

There is, of course, a widespread custom firmly based in the legal literature that the white kittel (the East European name) or the sargenes (the West European name) be worn by the worshiper on the Day of Atonement. It is also obvious that the white kittel was associated with the shrouds worn by the deceased. This fact is referred to specifically, for example, in the Hago’os Maimoniot to the Yad Hilchoth Sabbath, Chapter 30, where it is called “the garment of the dead.” Also, Moses Isserles in Orah Hayyim 610, where the Day of Atonement customs are discussed, says (4): “So it is the custom to wear the kittel which is white and pure and also is the garment of the dead.” If this interpretation of the meaning of the white garment is the correct and the basic meaning, namely that it is the garment of the dead and therefore is worn in humility on the Day of Atonement, then we would have to conclude by analogy that the white Ark curtain and the white Torah covers should be used only on the solemn days of the High Holy Days.

However, this somber interpretation of the white garments clearly is not the original or the basic one. Even as a garment to be worn on the solemn Day of Judgment, the earlier sources give it a different interpretation. The classic source for the older meaning is in the Palestinian Talmud, Rosh Hashonah, Chapter 1:3, where it is said: “Normally when a man has to face judgment, he wears black garments (to be humble in the face of a stern judge) but we wear white garments in joyous confidence that God will perform a miracle for us.” In other words, the white garments were garments of joy. This is also clear from the Babylonian Talmud, Shabbas 114a, in which it is said that brides and grooms wear white. This Talmudic understanding of white garments as garments of joy is borne out by early Jewish custom; for is not the white kittel worn by the head of the household at the Passover Seder and by the cantor who prays the Mussaf on the last day of Succoth and the first days of Passover (i.e., for rain and for dew)? Furthermore, one of the earliest of the Rhineland authorities, Eliezer ben Joel Halevi (first half of the twelfth century) says in his code Raviah (Sabbath 197) that the sargenes was made especially for Sabbath wear, which certainly is a day of joy.

All this indicates that the basic and original meaning of white and the white garment was not somber dread but confident joy. Nevertheless, it is true that for historical and psychological reasons the white garment began to be associated with sorrow, and even the non-High Holy Day uses of it were given a somber meaning. The wearing of the white by the bride and groom was now described as due to the fact that their marriage day was a fast day (they were required to fast). The fact that it was worn at the Seder and otherwise at holidays was explained as a solemn warning to think of death in the times of joy. In other words, the white garment, originally a joyous garment even for the Day of Judgment (according to the Jerushalmi) eventually became, in its every use, associated with the shrouds of the dead. (See the description of this process of change from joyous to gloomy in Berliner, Jewish Life in the Middle Ages, especially p. 48.)

How, then, should we decide our question? According to the law and the original meaning of the white garments, the white can be used for any occasion one wishes, and certainly for joyous occasions. But in accordance with the development of Jewish custom and mood, it has become associated with solemn and serious thoughts. I believe that we should respect the moods of the past few centuries (even though there is no strong legal ground for it) and keep the white garments primarily for the High Holy Days and perhaps for an occasional other holiday. It would be contrary to the mood of our tradition, though not of course of its strict law, to make the white coverings a permanent and common usage.

CURR 43-46

A SEDER WITHOUT WINE

A blackberry wine has been advertised as “Kosher for Pesach.” Since blackberries grow on bushes and not on vines, would it be proper to have that wine in the Kiddush cup when the blessing is invoked which specifically refers to the “fruit of the vine”? Or would it be necessary to use the wine that came from grapes specifically? (From Rabbi Bernard Perelmuter, Erie, Pennsylvania.)

ALL the Talmudic literature constantly praises wine (grape wine) as a symbol of joy and blessing and health and, of course, takes it for granted that grape wine is used for Kiddush on Sabbath, holidays, and the four cups for Passover. The first question is, therefore, whether it is possible or permissible to use any other wine but grape wine for the holidays and especially for the Seder.

Actually, they knew and mentioned a large variety of wines, some of which would hardly be called wine. Besides the various fortified and spiced wines, they speak also of raisin wine, which is apparently not fermented but boiled. After Talmudic times there is reference to wine made from pomegranates or from apples, which would really be our apple cider. (See Yore Deah 114:3, and the references for the earlier sources.)

Now the question is whether these variations of wine or pseudo-wine are usable for religious purposes. The first dis-cussions concern the Sabbath. There is no question that on the Sabbath, substitutes for wine can be used, as is obvious from the fact that it is possible to make the Kiddush over bread or over whiskey. The law is clearly stated in the Shulchan Aruch, Orah Hayyim 272. In 272:8, while Joseph Caro himself says that there are “some who say” that we may not make Kiddush over boiled wine (i.e., non-fer-mented) and honeyed wine, nevertheless the weight of his own opinion is that we may make Kiddush on these. And so in 272:9, Isserles proposes the custom that if no wine is available, one may make Kiddush over bread, etc.

However, the law is generally stricter in demanding wine for the four cups of the Seder than it is for Kiddush on Sabbath. For example, Solomon ha-Levi (in his responsa quoted by Lamperonti in Pachad Yitzchok) says that at the Seder you may use nothing but wine. However, this is an extreme opinion. An opposite opinion, which became the law, starts with Issac Alfasi at the end of Pesachim. He says that he who has no wine can make Kiddush over the matzoh (just as on Friday night over the bread). He de-scribes the process as follows: The man makes the first of the two blessings over the matzoh, then lays his hand on the matzoh (in analogy to holding the wine cup) and after the Kiddush which he then recites, he makes the second bless-ing over the matzoh. Rabbenu Nissim in his commentary ( ad loc.) says that Alfasi derived this from a Gaonic de-cision in the case of a man who was not permitted to drink wine. This decision finally became law as one can see in the Shulchan Aruch, Orah Hayyim 483, in which it is clearly stated that one can conduct the Seder without wine. Caro gives the law there clearly and Isserles adds that in our countries where we drink mead, we may use this or any other liquor if it is prevalent in the country.

So it is clear that if one does not have wine or one may not drink wine or, according to Isserles, if other liquors are the favorite drink of the community, one may use them for the Passover Seder. Of course, one may not recite the bless-ing “fruit of the vine” over such liquors, but the general blessing, “everything created by His word.”

Now as to the actual status of this blackberry wine, since it is now clear that it is permissible. Which blessing should be recited over it? I consulted an expert in the wine business (M. O., of Pittsburgh) and he tells me that the blackberry in the blackberry wine is actually only a flavoring of the essence of blackberries, but that the bulk of blackberry wine is actually bland grape wine. Therefore this is exactly the situation with the various flavored wines mentioned in the Talmudic sources and may be used as a Passover wine, and the blessing over wine invoked. This latter might re-quire a little more thought on the question of the “change of taste” from usual grape wine. If the general taste is like wine, then it is simply like the various spiced wines and it may be used for the Seder.

CURR 199-205

RABBINICAL FEES AND SALARIES

A congregation had decided that whatever fees a rabbi receives from weddings and funerals should be turned over to the congregation. It was assumed that the salary would be raised to make up for loss of fees, and that it is more dignified for the rabbi to receive only a salary and no fees from individual members. The question is asked by a colleague as to whether this deprecation of fees is in accordance with the ethics of the Jewish legal tradition and whether it would be wrong on his part to ask to have the decision reconsidered.

THE question of fees and salaries and the relation between them has been an ongoing discussion in Jewish law almost from the beginning. The question grew complex and needed constant reanalysis and redefinition. To give a general picture of how widespread was the discussion, we need only mention a number of references in the law in which a detailed analysis of the question was deemed necessary.

There are full discussions of this question to be found, for example, in the following: A series of responsa by Simon ben Zemach Duran, from 142-148, and his long commentary to the Ethics of the Fathers, IV: 5; Joseph Caro in his Kesev Mishnah to the Yad (Hilchoth Talmud Torah, Chap. III; Moses Isserles in the Shulchan Aruch, Yore Deah 246:21; also to Even Hoezer 154:21; also, Tosfos Yom Tov (Yom Tov Lipmann Heller) to Mishnah Bechoros, IV: 6. Then there are the responsa by Joel Sirkes ( Bach) 52; Meir Eisenstadt (Panim Metros, I:79); Moses Sofer in his responsa (Choshen Mishpot, 164).

Such a continued and elaborate discussion reveals the fact that the question of fees and salaries is one which has undergone considerable evolution as the rabbinate gradually evolved, becoming first a special skill and then a fulltime profession.

Originally no fees and no salary were deemed to be justified or permissible for any of the functions which we now look upon as the essential function of the rabbinate, namely, for teaching the Torah, for making decisions on the basis of Jewish law, for officiating at weddings or at divorces, etc. There was, first of all, the general ethical objection to getting any material benefit from the study of the Torah as is stated in the Ethics of the Fathers, “not to make worldly use of the Crown of the Torah” (I, 13) and “not to make it a spade to dig with” (IV, 5). The study of the Torah was a religious duty incumbent upon every Jew (see Maimonides in Eilchos Talmud Torah); therefore, how could a person take pay for pursuing that divine mandate? Besides the duty to study, there was also a duty to teach the Torah. It was especially incumbent upon a father to teach his own child the Torah. In general, teaching of the Torah to anybody was a religious duty for which no pay should be accepted. The Talmud, in Nedarim 37a (basing its comment upon the verse, Deuteronomy 4:14, where Moses says, “And God commanded me to teach you,”) elaborates Moses’ statement as follows: “God said to me, ‘Just as I, the Lord, taught thee without pay (bechinom) so thou teach without pay.'”

As for the making of legal decisions, that too was deemed to be a religious duty (“And they shall judge the people,” Deuteronomy 16:18). Therefore the Mishnah in Bechoros, IV:6 says: “If a man takes pay for making a legal decision, all his legal decisions thereby become void.” On the basis of these various opinions for complete “amateur standing,” one can understand the stern statement of Obadiah Bertinoro in his commentary to this Mishnah, in which he says he was shocked at the rabbis in Germany who took fees for officiating at a divorce proceeding, and also at the witnesses who took fees for signing the divorce document (the Mishnah also prohibits witnesses from taking fees).

Nevertheless, even in the Talmud, as the need for special training grew, this general prohibition was mitigated step by step. A teacher could be engaged for pay to teach children. Yet could he be permitted to receive pay when the duty of teaching was religiously incumbent upon him? The Talmud says that teachers of children were paid, not actually for the teaching of the Torah which was their religious duty, but for teaching the pisuk ha-ta’amim, the punctuation and the accents, etc., which they were not required to teach (Nedarim 37a). Rav says that the teacher is paid for taking care of the children, i.e., not directly for teaching the Torah (cf. Rashi, ad l o c) . The Tosfos to Bechoros 29a says that as for our present-day custom of receiving pay for the teaching of the Torah, it applies only to one who has no other means of support, or even if he does have other means of support, he is paid for the time that he is taking away from his other business. The comment of Tosfos has in mind the fact that so many of the rabbis in Talmudic times were working men and made their living from their labor and not from teaching the Torah (and in the time of the Tosfos, they were business men).

As for taking pay for making legal decisions, the law as such is embodied in the Shulchan Aruch (Choshen Mish-pot, 9:5) namely, that if one takes pay for judging, all his decisions are void; but Caro himself adds that the judge may take pay for the time that he has taken away from his other business. This brief statement of his is more elabo-rately dealt with in his Kesef Mishnah to the Yad, (Hil-choth Talmud Torah, III: 11) in which he says a man may take support from the community for all these functions, teaching, judging, etc., if he has no other means of support; and then he adds, since the time of the Rambam the custom is for rabbis to take salaries, and he justifies this situation by the statement of the Tosfos mentioned above.

Caro’s statement as to the changes which have occurred since the time of the Rambam are to be understood in the light of the series of responsa 142-148 of Simon ben Zem-ach Duran and his commentary to Ethics of the Fathers, IV: 5. Duran, who formerly made his living as a physician, had to flee from the Belearic Islands, which was a part of Spain, during the persecutions of 1396. He could no longer practice his profession in Algiers where he was a refugee, and was forced to take a salary from the congregation. He reviews all the relevant literature to justify his taking the salary.

As for those who took pay for deciding legal questions, a distinction was made between those who were occasional judges and those who were appointed to devote all their time to judging, i.e., professionals (Tosfos Yom Tov to Bechoros IV, 6). With regard to divorces, Isserles says ( Even Hoezer 154:2 in Seder Ha-get) that the arrangement of divorces is not to be classified as legal decisions and therefore no fees are justified.

The fact of the matter is that it simply became necessary to professionalize the rabbinate, and so Isserles (with refer-ence to the responsa of Simon ben Zemach Duran) simply says, “Therefore it has become the custom in all places that the rabbi of the city has income and support from the com-munity in order that he need not engage in other work.”

However, the memory of the older level of the law before the rabbinate became a profession still remained, and the statement is often made by the scholars that if a person could afford to serve as a rabbi without pay, that would be the ideal situation. It is rather touching to read the responsum of Moses Sofer, Choshen Mishpot 160. A pupil of his had asked whether to accept a rabbinical position and the salary, and his teacher answers, “Alas, I am suspect in this matter; i.e., I take a salary.” And then he refers to all the above opinions now permitting it.

As between fees or salary, there is really no choice as to which would be deemed worthier or more ethical. The older law objected to both. Yet as can be seen from the arguments of Duran, the paying of the regular salary developed later than the receiving of separate fees for specific services. He bases his justification for accepting a salary (hitherto unprecedented) upon the fact that rabbis, etc., have “always” received “fees.” But this was to be expected as a natural evolution; first separate fees were justified and then, finally, the custom of a salary was established. So there is really no historical preference for one form of income over the other. In fact, in later centuries, the rabbinical fees are considered to be the legal prerogative of the rabbi. Moses Sofer (in his responsa Yore Deah 230) refers to a responsum by Isserlein (three centuries earlier) in which Isserlein deprecates the acceptance of wedding fees. Moses Sofer says that since the days of Isserlein the situation of the rabbinate has changed; he is now engaged by the community (professionally) and the fees are an integral part of his income. (cf. fuller discussion C. C.A.R. Yearbook, Vol. LXV, p. 86-87.)

Of course a congregation and a rabbi have the right to agree as to the sort of emolument the rabbi should receive. There can be no legal objection to a contract confining the rabbi to one class of income or the other. If the congregation and the rabbi have agreed at the beginning of the rabbi’s term that he should not keep the fees, they have the right to make such an agreement. But if the rabbi would like to have the matter reopened and the agreement changed so that he be permitted to accept fees, there can be no ethical objection in Jewish law to such efforts. Both salaries and fees have equal standing in the law except, perhaps, that fees arose earlier than regular salary. Both were equally frowned upon at the beginning, and both became acceptable as rabbinical duties became specialized and professional.

(Originally published in Central Conference of American Rabbis Yearbook, Vol. LXXVI, 1966.)

CURR 180-181

SOME KADDISH CUSTOMS

How old is the custom of reading the names of those whose Yahrzeit comes up during the week? Is there a traditional basis for hiring somebody to say Kaddish for the deceased? (From Rabbi Wolli Kaelter, Long Beach, California.)

As to the first question, our Reform congregations, at least up to the last thirty years, had the custom of reading the names of the deceased and the Yahrzeits as part of the Kaddish. Later some large congregations abandoned the practice simply because there were too many names to be read each week. Others, in order to keep the sense of Yahrzeit from fading from our people, are experimenting with informing the members of the Yahrzeit and reading the names of the deceased whose relatives have signified their intention to be present at the service. Other congregations, usually smaller ones, continue the older Reform custom of reading the names as part of the Kaddish. The question that is asked is: Does this reading of the names have any basis in the Jewish tradition?

Clearly this custom of ours is related to Yizkor or haskoras neshomos. The haskoras neshomos, as all scholars agree, began in the Rhineland after the Crusades. It was conducted on Yom Kippur and obviously the names of the martyrs were read, because we still have lists extant of the martyrs. The Rhineland congregations kept a Memor Buch, obviously for this purpose.

Then the custom of haskoras neshomos was extended in eastern Europe from Yom Kippur, also to the last day of each of the three festivals (cf. Isserles to Orah Hayyim 284:7). The question now is whether on these Yizkor services during the year a list of names was ever read (as we do at Memorial Services and as some of our congregations do at Sabbath services). First, we know that in eastern Europe there is a custom that lists of names of the deceased are read. There is a discussion of the whole question in Greenwald, Kol Bo Al Avelus, p. 339 and then later on p. 400 ff. Maharash Engel was asked the following question in his Responsa V, 24: There is a custom in many congregations that if a person leaves money to the Chevra Kadisha for this purpose, his name is read on the holidays and a light is lit on his Yahrzeit. The question asked of Engel was, since oil is now expensive (it was during the First World War) may they light one light and read a whole list of names of those whose Yahrzeit it is that week? He gives this permission, but adds that we must be sure that the names of all the donors should be read whose Yahrzeit it is. Solomon Schick, in his Responsa Rashban (Orah Hayyim 213) speaks of reading all the names in a memorial list and says it is not necessary (as some claim) to list the men and the women separately.

Now all this concerns either the Yizkor at holidays or the Yahrzeit day of the deceased. Could such memorial services take place on the Sabbath? Yes, for those who died during the week (Maharil quoted by Beer Heteb, Orah Hayyim 284). There is no question that they may (see Kol Bo 339, 13, which gives various references to this effect; cf. also Azulai Birche Joseph to Orah Hayyim 284:15). However, this is not quite our custom. The names of the dead mentioned were always in the regular Yizkor place, after the Torah reading in connection with the general memorial prayer, av horachamim, never in connection with the Kaddish, as is our custom.

Therefore it seems clear that our custom of reading memorial names on the Sabbath in the Kaddish is original with Reform, but it has these many roots, as is mentioned above.

Now, as to the second question, how far back the custom can be traced of hiring somebody to say Kaddish (this will occur especially with families in which there are no sons surviving). The earliest statement I have found on this goes back to the fourteenth century. Jochanan ben Mattathias who was virtually the last rabbi in Paris before the expulsion (i.e., fourteenth century) is quoted by Joseph Caro in his Bes Josef to Yore Deah 403, and he speaks of people hiring a melamed to say Kaddish. Later references are fairly numerous (Magen Avraham, Orah Hayyim 132:2, near end). For example, it is discussed by Ezekiel Landau of Prague in his Responsa Nodah b’Yehuda, II, 8. Finally there is a full discussion of the whole question in Israel, in the magazine Ha-Posek, published by the late Rabbi of Tel Aviv, Hillel Posek. The question arose because the shammas of a Shul in Tel Aviv was hired to say Kaddish for as many as ten people at a time. Therefore he asked David Assaf, who is rabbi of Haifa and has written a book on funeral customs, whether this situation should not be changed. In the magazine Ha-Posek, beginning with paragraph 780, he has a long responsum which covers all the literature. He does mention, however, that while the custom is well founded among us Ashkenazim, the Sephardic Rabbi Ben Zion Uziel (in his Mishpotey Uziel, Orah Hayyim 2) objects to it on the ground that no one should take pay for what is a mitzvah. At all events, it is a well established custom.

What is the basis for the folk custom of sitting shiva for a child who has converted to Christianity? (Asked by Rabbi Morris M. Task, Bayonne, New Jersey)

The basic source of the custom is in a statement in Isaac of Vienna’s Or Zorua (twelfth century). In the laws of mourning (at the end of the volume, 428) he transmits a report that Rabbenu Gershom (the Light of the Exile) sat shiva for his son who was a convert to Christianity. This statement is quoted by a number of the early authorities and I give you the references for completeness’ sake: The Mordecai to Moed Katan 886, Meir of Rothenberg in his Responsa (edited Budapest, 544) and a later authority, Joseph Caro in his Bes Josef to Tur, Yore Deah 354. In all these references the authorities cited are careful to say that the law is not according to Rabbenu Gershom. Now, therefore, if the original reference to Rabbenu Gershom in Or Zorua meant actually that Rabbenu Gershom sat shiva when his son was converted (i.e., because of the conversion) even so, the chief authorities say that this is not the law.

However, a careful reading of the texts reveals that there is a misunderstanding. Rabbenu Gershom did not sit shiva when and because his son became an apostate. What he did was to sit shiva for his son when the son died, in spite of the fact that the son had become an apostate years before. That this is the meaning of the passage in Or Zorua is clear from the following: All the discussions in Or Zorua itself and in the later sources which quote the incident, quote it in the following setting: The tractate Semachos, Chapter II, says that we must have no mourning of any kind for sinners and those who abandon the community. Therefore the law is that there must be no mourning, i.e., no shiva, etc., for apostates. Nevertheless, Rabbenu Gershom sat shiva for his apostate son when the son died, and the authorities all say that we do not follow his precedent. In other words, we do not sit shiva when an apostate dies.

How did the misunderstanding of the passage in Or Zorua arise? Why was it wrongly taken to mean that Rabbenu Gershom sat shiva when the son was still alive but had converted? This was due to a peculiarity of the text in Or Zorua. It says that Rabbenu Gershom sat shiva for his son, K’sh’nish-tamede. Obviously, as Chones indicates in Toldos Haposkim, page 208, the text should read “sh’nish-tamede. ” All the relevant contexts prove this (see Mordecai to Moed Katan 886). The incident, therefore, is that when Rabbenu Gershom’s son, an apostate, died, he sat shiva for him, which he should not have done. The wording of the text led people to the erroneous belief that he sat shiva for his son while the son was still alive and had just converted.

CURR 88-90

PRE-CONVERTS PARTICIPATING IN SERVICES

Women who are under instruction to become converts have the various religious ceremonies explained to them. Before the process of conversion is completed, may they, for the purpose of learning, light the Sabbath candles and recite the blessing over them? (From Chaplain Hirshel L. Jaffe, Travis AFB, California.)

THE main objection is the question of “a blessing in vain,” (beracha l’vatala). When a blessing is not required and is nevertheless recited, it is, in a sense, using the name of God in vain. Is the Gentile, while still a Gentile, able to say, “Who has commanded us to light the Sabbath lights,” and to use the name of God in such a blessing? The answer to this question depends upon whether Gentiles, while still Gentiles (i.e., “Children of Noah”) are in duty bound to keep the Sabbath. Clearly the Sabbath is not one of the seven commandments which “Sons of Noah,” i.e., Gentiles, are in duty bound to observe. In fact, there is a rather harsh Aggadic saying to the effect that a Gentile who observes the Sabbath does not deserve to live ( Sanhedrin 58b). However, this statement, being Aggadic, is not to be taken too seriously. They also say, for example, in Berachos 4b that he who transgresses the words of the sages deserves death. The stern expression in Sanhedrin simply indicates that the rabbis disapproved of the Gentile observing the Sabbath since he is not commanded to do so. Since that is the case, we may take this to be an objection to having these candidates for conversion (while they are still Gentiles) recite the blessing. It would be a beracha l’vatala.

Yet aside from the question of beracha l’vatala, there is basically no objection in general to a Gentile reciting blessings. What objection there does exist is to a Samaritan reciting a blessing (Berachos VIII:8). The reason is that the Samaritan was suspected of praying to Mount Gerizim. When the Tosefta repeats this law (Berachos V: 21) it says that when a Gentile (i.e., not a Samaritan) blesses, using God’s name, we say “Amen” after his blessing. So this law is carried all the way through the literature and is found actually codified in the Shulchan Aruch, Orah Hayyim 215:2, where it is clearly said that we do not answer “Amen” after a blessing of a Samaritan, etc.; to which Isserles says that after a Gentile, we may say “Amen” if we have heard the whole blessing. Therefore, except for the consideration of “a blessing in vain,” there is no real objection to a Gentile reciting the blessing.

There is, of course, a fairly simple way out of the objection against the violation involved in beracha l’vatala. This is illustrated by the decision of Moses Isserles to Orah Hayyim 225:2, where there is some doubt as to the validity of the blessing to be recited by the father at the son’s Bar Mitzvah. Here, there is danger of a beracha l’vatala if, after all, the blessing is really not required. Therefore Isserles solves the problem by having the blessing recited, leaving out the words, “O Lord, our God, King of the universe.” This is the method that the rabbis often follow when they are uncertain as to whether the blessing is required or not. They have the blessing recited without using the Name of God, or as they say, “b’li Shem u-malchus, ” because the real objection to the “wasted” blessing is using the name of God in vain. When you leave out the name of God, the objection to reciting the blessing virtually vanishes.

There is, perhaps, another consideration which might lead you to allow the woman to recite the blessing. We train children in preparation for their observance of the commandments which they will not be in duty bound to observe until they are thirteen, and certainly we teach them to recite the blessings which will be required six months later. Of course, there is some weakness in this argument, namely, that according to many authorities, any young child who can take good care of tefillin is already in duty bound to put them on. Also, according to the Talmud, Megilla 23 a, even minors may be called up to the Torah. However, to us, to whom Bar Mitzvah begins actually at thirteen, there is certainly a fairly strong analogy in letting children under training pronounce the blessings before they are legally due.

To sum up: The objection to these candidates reciting the Friday evening blessing is that the Sabbath is not one of the commandments incumbent upon Gentiles and, therefore, a blessing recited by them over the Sabbath lights would be “a blessing in vain.” However, in general, Gentiles may recite the blessings and we may recite “Amen” after them. When there is doubt about the validity of the blessing, we can leave out the name of God. Since, however, this would shorten the blessing, too, and not constitute an adequate training, we may rely upon the analogy of the training of pre-Bar Mitzvah boys and allow these candidates to recite the blessing.

CURR 240-242

PORNOGRAPHIC LITERATURE

What material on the question of pornographic literature is found in our Jewish traditional writings? (From Rabbi Joshua O. Haberman, Trenton, New Jersey.)

THE question of pornography in speech and writing would concern the ethical rather than the legal literature, but the following is what there is in the ancient literature and the tradition based upon it.

The chief source is Deuteronomy 23:15. In discussing the duty to keep the camp of the Hebrew army sanitary, the verse in Deuteronomy expresses itself as follows: “For God walketh in the midst of thy camp. Therefore shall thy camp be holy, that He see no unseemly thing in thee.” The phrase translated “unseemly thing” in Hebrew is “ervas dovor, ” and so “unseemly thing” can be translated as “unseemly word.” In fact the Targum uses the word “pisgom” which means “word,” and Ibn Ezra explains the phrase to mean “nothing unseemly in deed or word.”

More specifically, in Leviticus Rabba 24:7, Rabbi Samuel ben Nachmann says that the phrase in Deuteronomy refers to pornographic speech (nibbul peh.). In fact the Talmud in Ketuboth 5b, speaks of the fingers and the ears and refers to the stick which is mentioned in the Deuteronomy passage for digging up the earth and covering the dirt, and also refers to the fact that the word used in the Deuteronomy passage for “weapons” is “ozen, ” which also means “ears.” Upon this the Talmud says that the passage implies that if a man hears unfit speech, in other words, pornographic speech, he should use his fingers to stop up his ears so as not to listen.

There are a number of more direct statements about pornographic speech. The Talmud in Shabbas 33a says that misfortunes come to us and young men die prematurely because of unseemly speech. This is based upon the verse in Isaiah 9:16, which refers to “the mouth that speaketh unseemly words.” The Talmud in Ketuboth 8b says quite straightforwardly, “Everyone knows why the bride enters the chuppah (here the word “chuppah” means the connubial room) but the man who will make sexy jokes about it will be punished by God’s decree.”

Therefore (and here we come closer to legal decision) the Shulchan Aruch in Even Hoezer 25:1-2, speaks of the duty of a man to avoid such speech even when he is alone with his wife. This is also based on the statement of the Talmud in Chagiga 5b. Actually the whole matter of the avoidance of pornography, although it is more ethical than strictly legal, is organized as a series of legal regulations for self-control in speech (Even Hoezer 25:1, etc., and Orah Hayyim 200:9).

This about covers the strictly legal material.

CURR 42-43

WHEN EIGHTH DAY OF PASSOVER IS ON SABBATH

Since the Reform practice as to the length of the festivals is the same as the biblical and the Israeli, which Torah reading shall be used on the Sabbath of what would be the eighth day of Passover? What is the practice of Reform congregations in America?

THIS question has been asked a number of times, and answered by the writer as Chairman of the C.C.A.R. Committee on Responsa, so the answer may be deemed official, or as nearly official as any Conference responsum is. That is to say, it is meant for guidance and not for strict governance. Yet in general, it represents a fairly universal practice among our congregations.

The actual problem is this: On the holidays, the regular sequence of weekly readings (the Sedras) is suspended and a special holiday Torah reading is provided. When the holiday is over, the regular sequence of Torah Sedras resumes on the first Saturday after the holiday.

But if, as happens fairly often, the eighth day of Passover is on a Saturday, then in Israel, which considers the eighth day a regular non-festival Sabbath, the regular cycle of Torah reading resumes. Therefore Israel is one week ahead of the rest of the Jewish world in the Torah cycle. But not for long! Israel continues ahead until they come to the first double portion. On Pesach, which usually takes place on the Sedra Tzav, the dislocation continues for only two weeks, when the double portion Sazria-Mezoro comes. That week Israel just reads Sazria separately, and the next week Mezoro separately, and thus the rest of world Jewry catches up with them.

This problem does not arise with regard to the ninth day of Succos because that cannot be on Sabbath.

Now, this solution (of Israel being ahead one week until the next double portion comes) works well because of the fact that the different schedule of readings occurs in different countries (although even in Israel it is still a problem for visitors who do not come there as permanent settlers, since they must follow their home schedule).

But the problem remains in the relationship between Reform and non-Reform congregations in America, England, etc. Here we are in the same country, and it is not convenient that for a number of weeks we should be in dislocation as to Torah reading with the rest of American Jewry. We have therefore arrived at the following practical solution: We simply reread on that Sabbath the special reading of the holiday that we read the day before, and take a Psalm as the supplementary reading, but the service that day is a regular Sabbath service. In this way, on the very next Sabbath we are in accord with all the Jews of our environment. The list of Torah readings at the back of the Union Prayer Book Newly Revised follows this solution of the problem.