Combining Separate Rooms to Create a Minyan

I was recently at a minyan in a beis ha'avel, and the minyan comprised six men in the living room and five in the dining room.  The two rooms were separated by a hallway and walls, with large doorways.  A person standing in one room could easily see the people in the other room.  Do we have a minyan?  I checked to see what the Internet says; and I was once again amazed at how times have changed!  It used to be that to be simply wrong was easy, but it required some work to be thoroughly convinced of the truth of your error.  Now, each and every one of us can do the same with a few keystrokes.  In short, almost everything I found was not only wrong, it was convincing, because they often began with irrelevant and misapplied truths.  So I felt I needed to post this.  Of course, remember what I say in my profile.

So, do we have a minyan?

Yes, we do, sort of, bedieved. Mishna Berura 55 sk 57 ("where it is difficult to avoid, perhaps we can be lenient.")

No, we don't, absolutely not.  Aruch Hashulchan 55:20, 23.  He says this you also don't have a minyan when some are in the shul and some in the Ezras Nashim.  And the Gaon and the Chayei Adam, who hold that making a minyan is not comparable to making a mezuman for bentching, so the "seeing each other" rule is not applicable.
The Aruch HaShulchan sk 20:

מיהו זה וודאי העומדים בעזרת נשים לא יצטרפו עם העומדים בבית הכנסת, אף שיש חלונות מעזרת נשים להבית הכנסת, ורואים אלו פניהם של אלו, כיון שמחיצות גמורות הן – הוויין שתי רשויות.

And even the Mishna Berura has strong reservations. 

I should point out, though, that קלקולו זהו תיקונו - if the mechitza allows you to see over it and you and the men behind the mechitza see each other, then the Mishna Berura is noteh to be meikil.

This is often seen as a surprising halacha, because many of us are familiar with the Gemara in Eiruvin 92 that allows creating a minyan by combining groups that are in two courtyards that open to each other under certain circumstances.  The problem is that most poskim say that the Gemara only applies when they are in courtyards, or one group is in a courtyard and the other in a house, but if the two groups are in separate rooms or houses, this amplifies their separate identities, and they do not combine at all.  On the other hand, the Rashba in a teshuva (96) says that it is possible that when the members of the two groups can see each other, they automatically combine.  The Rashba, though, only says that this is possibly true.  (See Biur Halacha 55:13 dh "ve'lachutz" and MB sk 57 with Sha'ar Hatziyun 60.)  So the practical rabbinics divides as to halacha le'maaseh, according to the Aruch Hashulchan and the Mishna Berura respectively, and at best you have a bedieved.

Please note that this discussion does not apply where there is a complete minyan in one room, and others want to say kedusha with them.  Where there is a good minyan, it is easy to become a part of them.  Our discussion only involves a case where you are trying to create a minyan by combining separate groups.

This Post is NOT about Quantum Mechanics

Herman Wouk, may he be ma'arich yamim ve'shanim, (who was kind enough to hand down his own childrens' baby carriage so that my wife could be proudly wheeled around the Lower East Side lo these many years ago,) has recently published a book titled The Language God Talks.  On Science and Religion.  He quotes the Nobel Laureate Murray Gell-Mann as having said that "the gap between a person who understood quantum mechanics and one who did not was arguably wider than the difference between a human being and a great ape."    Dr. Gell-Mann is convinced that a person who knows the basic truth of reality is categorically different from one who does not.  
Assuming a bright line dichotomy between human and animal, there are two ways to understand his statement.  

• Either he meant that only those few that understand Quantum Mechanics are truly human, and he thereby cruelly consigns more than ninety nine percent of mankind to a less-than-human state, 
• or he meant that although the uninformed masses are human, those who understand Quantum Mechanics are vastly superior to them.

In any case, Dr. Gell-Mann was not making value judgments.  He was simply observing a fact: To be  Human means to understand; Homo Sapiens.  It is our specific function.  The most important truths that a human being must comprehend are those that underlie reality.  If you understand the deep truths of what the world is about, then you truly sapient.  


Even further: if you don't understand Quantum Mechanics, your world view is not merely deficient, it is delusional.  Your view of reality is not just imperfect- it is false.  


If you think you understand the basic truths of existence when you do not, if you merely skate along the two dimensional surface of the empirical evidence that can be perceived by the uneducated mind, then you have failed to fulfill the specific function of humanity, which is to comprehend truth.  You are certainly less sapient; perhaps you are less than sapient.


I don't think that Dr. Gell-Mann would say that the poor uneducated masses are less entitled to life, or that they don't deserve our love.  Although he is, nebach, a proud atheist, (whose incurable drive to assert his superiority and to demean any possible rival makes it impossible for him to recognize a Ribono shel Olam, as becomes obvious after watching this or reading this,) he is not, God forbid, a Nazi.  But he understands that Quantum Mechanics is so important, so essential, so fundamental to the meaning of reality, that those who fail to understand it are lesser beings, just as great apes are less than humans.


Also, I think that it is misleading to define "human-ness" exclusively on the basis of rationality.  There is a moral component as well.  I'm sure there are people who are conversant in Quantum Mechanics who are no better than those gentle giants of the jungle.

Sukkos: Shehakol Tomatoes, Greenhouse Esrogim and Moonroof Schach

Shehakol Tomatoes and Greenhouse Esrogim

The bracha on a tomato or a cucumber is Borei P'ri Ha'adama- Who created the fruit of the Earth- except when it is not a fruit of the Earth.  If a vegetable is grown in a container that is not open to the ground, and has no branches that overhang the ground, it is not halachically attached to the Earth, and you cannot make the regular bracha "borei pri ha'adama" on it.  In that case, the correct bracha is She'hakol.  Some, but not all, greenhouse produce falls into this category.  Although some greenhouses have benches that are perforated and stand above open ground, some grow produce that is completely separated from and unexposed to the earth.  During the winter, you should check your produce, because it is common for winter tomatoes and cucumbers to have been grown in greenhouses, often hydroponically, and therefore require the bracha she'hakol. When in doubt, one should make the bracha She'hakol.

While the issue of correct brachos is important, it is a din derabanan, and this question has relevance to dinim de'oraysa as well.  For example, can you use an esrog that was grown in an atzitz she'eino nakuv, a closed pot that separates the plant from the earth?  We can understand that the words "Pri Ha'adama" exclude something grown without contact with the Earth.  But the bracha "borei pri ha'etz"- Who created the fruit of the tree- doesn't mention the ground or the earth, so the bracha for greenhouse grown tree fruit should still be "ha'etz," and it should therefore satisfy the requirement in the Torah to use "Pri Eitz Hadar."  Similarly in the case of Hadasim, it says Anaf Eitz Avos, but nothing about the ground.  Certainly, the Aravos and Lulav should be fine, since it doesn't even say Pri or Eitz.  On the other hand, perhaps the word "eitz" connotes a tree that grows from the Earth, in which case a greenhouse esrog or hadas would not be kosher.

This is not a remote case.  As it happens, I have both an esrog and a hadas in pots which spend the summer outdoors and (because I live in Zone 5a/b) the winter in the house.  They are over twenty two years old, and have produced a great number of kosher esrogim and hadasim, though the esrog is long past its bearing years, and I trim the Hadas more as Bonsai than as a source of Hadasim.  I just realized that the esrog, the hadas, and I, are all superannuated.

Reb Moshe (OC 4:#124) indicates that they are kosher.   (Reb Reuven Feinstein argued that  his father was only mattir bedi'eved.  That may be true, but the cited teshuva shows that he was mattir lehalacha, and in the teshuva he does not say it is only bedieved.)  Reb Yaakov Kaminetsky is also mattir lechatchila.  His son in law used to raise esrogim in a greenhouse in Monsey.  However, the Chayei Adam in his Hilchos Sukka 152:3 (discussed extensively in his Nishmas Adam there) is not sure of the halacha in the case of all the four minim.  Although he believes they ought to be kosher, he has a problem with a Rambam in Hilchos Trumos (second perek) that indicates the opposite.  Reb Aharon Kotler was the biggest machmir on this issue.  He held that not only is such a fruit not kosher for Sukkos, but if the tree the fruit grew on was ever detached from the ground, that tree is forever passul for growing arba minim.  The Yam shel Shlomo and the Chazon Ish also discuss this, but I don't have access to my notes at the moment.

As far as Brachos, the Chayei Adam in his Hilchos Brachos (I don't remember the klal number but its easy to find) says that you make a she'hakol on this kind of vegetable, and mezonos on bread that is made from this kind of wheat (astronauts, pay attention.)  However, in line with his safek in Hilchos Sukka, he leaves unresolved the halacha regarding borei pri ha'etz.

(I think it's odd to say that and explicit element- Arvei Nachal, a brook willow- is not read as requiring that it actually grow near a brook, and you can use a willow that grew far from any brook, and to then say that an implicit requirement, that the eitz be grown in the ground, is integral.)

Moonroof Schach

As for Moonroof Schach, someone pointed out that if you want to go on a trip, you can throw a schach mat over your sun or moonroof, and have a kosher sukka.  Here's a picture of the car I drive, a Subaru Forester:

The sides of the car would have a halacha of Dofen Akuma, and you can't sit under the dofen akuma, so you would have to eat under the open part, not the closed roof.  There's also an issue of having the table in a non-kosher part of the Sukka (OC 634:4).  So make sure to eat off of your lap, or to use a lap table, not the dashboard.

This arrangement is better than the idea of opening two doors on one side of the car and putting the schach on between the tops of the doors, thus creating a three-sided sukka- the car and the two doors.  The car door sukka can involve a problem of having the walls of the sukka more than three tefachim above the floor of the sukka, which is passul (no gud asik because gediim bokim bo).  The Moonroof option, on the other hand, has the walls going down to the floor.

For the first commenter, who mentioned that his daughter wants a picture of a sukka on an elephant, here.

General Information About This Website

I recently received a comment criticizing the subject matter and tone of the most recent post.  I agreed with the writer that what I had posted could be misunderstood and used to vilify Jewish Theology.  But I didn't remove the post.  There were several reasons why I left it up.

I'm a reasonably intelligent, and very well educated in Rabbinic Torah.  I attended Johns Hopkins University, and passed the Bar exam on my first sitting.  I am widely and well read, from weighty tomes to trifles and trash.  This background supports the validity of my judgment of the quality and the craft of written words.  On that basis, I can confidently aver that my style of writing will drive away anyone that is not highly motivated to pursue the subject matter.  Among those it does not drive away, a high percentage will become hopelessly lost in the thickets of marginal and tangential comments.  Those people (sometimes, that person) that will reach the end and have any idea of what I'm talking about do not worry me.  There are pieces that have lain dormant for four years without comment and barely a reader, and then someone writes me about it, like the post that used the Westinghouse Trade Dress test to explain the Ramban by the one-stone altar.

Also, no matter what we do, those that dislike us will dislike us.  I am reminded of the couple touring South America who are jailed and convicted on some absurd trumped up charge, and placed in front of the a firing squad.  The capitan offers the husband a last cigarette, and he knocks it out of the captain's hand and says I spit on your cigarette and I spit on you.  The wife says, "Harry, stop that!  You'll make him mad at us!"

In short, I'm not worried about this website giving fuel to those that dislike us, whether they are our brothers or cousins or not related to us at all.  There are some incendiary things I wouldn't print, but that post was not one of them.

Helping Your Friends Do Teshuva. כפייה דתית

Two parts:  Part two is is Divrei Torah. 

PART I

There's a tendency to favor simplicity, the easy-to-understand half-truths that free us from trying to comprehend a complex whole.  Still, sometimes these bromides can yield some insight.  For example: the distinction between Humans and other creatures, that "only a Human is capable of intentionally killing himself" is true, but it's not the only difference.  Still, it does focus our attention on one aspect of what being human means.

Almost all religions are exclusivist.  They teach that their truth is the only truth, and that other religions are false and, by omission or commission, passively or actively, evil.  But to what extent do they require that their adherents impose their beliefs on others?  That great intellectual achievement of Western society, that religion is a matter of personal conscience and outside the ambit of the state or of other individuals, is a purely political concept, and tells us nothing about theoretical religious doctrine.   Of course there is a wide gulf between theoretical religion and practical religion, and the practicalities of living among others in a heterogeneous civil society mandates some degree of tolerance.  But there are definitely differences between religions in this matter; what does a religion's theological doctrine on tolerance of or respect for other religions tell us about that religion?  I'm not claiming that this discussion will tell us everything about a religion.  But it does focus our attention on one aspect of what it means to be faithful to that religion.

There are really several aspects to this question.  We find differences in applying this concept to members of the same religion who have sinned, to minority non-co-religionists who live in a state that defines itself as being "of religion X," and to non-co-religionists who live outside the borders of the religious state.

Another question: among those religions that hold that their beliefs should be imposed on others, what is the motive for that imposition?  There are four distinct possibilities: 

• 1. As charity, for the spiritual benefit of the other (to save him from burning in Hell, to save a lost soul, etc.).  
• 2. As service to god.  Just as sins are offensive to god, so too are sinners; unbelievers are by definition sinners and should therefore be eliminated.  (You could also call this punishment, or Ubi'arta Hara Mikirbecha, but I think the way I put it is sharper.)  
• 3. Shared liability.  Any sin that we could prevent, but don't prevent, has been committed because of our inaction.  It is our fault that it occurred, and to some extent it is as if we did the sin.
• 4. To protect the true religion, because the existence of non-believers can engender doubt in the minds of the servants of the true god.  (Before we got married, my wife met a very sincere woman who told her she should light candles for Shabbos even before she gets married.  My wife said that in her family, they don't light until they get married.  The other person said "But the Rebbe says you should."  My wife answered, "My rebbe, Reb Moshe Feinstein, said I shouldn't."  The other, with a perplexed look of utter confusion, said, "There's another Rebbe?????")

I don't mean the items in this list to be mutually exclusive.  One, or two, or all of the reasons might apply.

David Rohde, in an article he wrote for the New York Times (October 19 of 2009), described his seven month`s as a captive of the Taliban.  He wrote

Citing the Taliban’s interpretation of Islam, he said it was every Muslim’s duty to try to stop others from sinning. If one person in a village commits a sin, those who witness it and do not stop him will also be punished by God.

Pressing me to convert, one commander ordered me to read a passage of the Koran each day and discuss it with him at night. He dismissed my arguments that a forced conversion was not legitimate. He and the guards politely said they felt sorry for me. If I failed to convert, they said, I would suffer excruciating pain in the fires of hell.

At one point, a visiting fighter demanded to know why I would not obey. He said that if it were up to him, he would take me outside and offer me a final chance to convert. If I refused, he would shoot me. 

That is pretty forthright, but you can't really prove anything from an ignorant man-child with a gun who is emulating a morally stunted illiterate.

The Christians have changed their overt behavior over time, generally from proselytization by force to earnest evangelism.  Even in the earliest years, there were some moments of tolerance: In the year 633, The fourth council of Toledo declared that

“men ought not be compelled to believe (or rather pretend to believe) because God will have mercy on those on whom He will have mercy, and whom He will He hardeneth.  Man fell by his own free will in listening to the tempter, and suffering himself to be misled by the wiles of the serpent, and so he could only be converted by his free acceptance of the Christian faith.”

And there is a very poignant record of the Jewish community's attempts to convince the Visigothic King Sisebut of Hispania (565-612) to leave them alone and not force them to convert to Christianity here.

Hindus and Buddhists really don't care a fig for what others do or don't believe; The pluralism they espouse, I think, bespeaks a theological blurriness, and they're kind of embarrassed about the whole thing.  Islam has gone through various stages, from the formative stage of violent forced conversion, to a long and wonderful period of tolerance, and back to nuts again.

What do we Jews believe?  Can we do the Torquemada thing, too?  Certainly, we have a mitzva of rebuking and educating people who are not being mekayeim mitzvos.  But intimidation is much more effective.  As a certain mobster once said, "You can get a lot more done with a kind word and a gun than you can with a kind word alone."  More seriously, it's obvious that if we did go along this path, we could never replicate what the Spanish did during the Inquisition.  We don't have that kind of bloodiness in our national makeup.  But I want to talk about both theory and practice.

This has a lot to do with the Aseres Yemei Teshuva.  It's so very hard to modify our behavior!  Breaking habits to the extent that we can be confident we will never revert is practically quixotic.  Judging from those poor people who have their stomachs banded, and who manage to regain all their weight, succeeding at permanent behavioral change is vanishingly rare.  On the other hand, it's easy to force other people to do the right thing.  We've all seen the morbidly obese person hectoring a diabetic to undertake a spartan lifestyle, and we've all seen smokers curling their lip in disdain at the sight of a person like them lighting up in public.  If we've despaired of doing teshuva ourselves, can we at least make our friends and neighbors do teshuva?   Not only is it easy to make other people do the right thing, it is also very enjoyable.  It provides a sense of superiority and rectitude at no personal cost.

And this is not such an abhorrent notion.  Would you not agree that a father or mother could impose their beliefs on their children?  What about a grandfather, or an uncle, or a cousin?  Where does the familial right of enforced indoctrination end?  And what about the regulation of psychoactive drugs and alcohol and tobacco? Are we not interfering in personal matters of choice?  And what about traffic safety laws that require the use of seat belts and penalize failure to use them?  Or do we have a right to protect society from the costs of irresponsibility, and even protect individuals against their own bad choices?  Is כפייה דתית, religious coercion, different? 

PART II

The Gemara in Sanhedrin 16 brings the first passuk in Shoftim, Devarim 16:18, to show that we are required to establish a system of justice that is empowered to enforce all religious law, including matters of public morality, transgressions of prohibitions, and refusal to fulfill religious obligations.  This empowerment is absolute, and the means of enforcement is left to the judges' discretion.  This rule primarily pertains only to the official court system operating within Israel or other areas of Jewish autonomy.  Can individuals take the law into their own hand?  What obligation do we have regarding non-Jews?  What obligations do we have regarding Jews outside Israel,, or outside areas of self-government?

The Rosh in Bava Kamma 27-28, brought by the Rema CM 421:13, says that one is permitted to strike another Jew in order to prevent him from transgressing an Isur. Therefore, if one sees a Jew chasing another Jew to hit him, he may use physical force in order to stop the perpetrator.  This, however, involves the defense of a victim, not simple religious enforcement.

The Rema in EH 154:3 also brings, as a Yeish Omrim, the Trumas Hadeshen  (#414) permits a person to hit his or her spouse in order to prevent the spouse from cursing his or her parents.  This case, too, can be seen as a legitimate response to verbal assault, and not at all a matter of enforcing religious law.

However: The Sheiltos (#27)  indicates that not only may one use physical force to prevent another from doing any aveira now, but he can also do so to prevent him from doing aveiros in the future.  But the Trumas Hadeshen limits his halacha to cases where the one is responsible for the other, such as a parent or a master, or a spouse, depending on how society views a spouse.

The Maharshal (YSS Bava Kamma 3:9) limits this to a Muchzak b’kashrus.  (By the way, I'm not convinced that he's making this distinction on the basis of the Mishna in Sanhedrin about Kana'im, which would limit it's relevance to muchzakim b'kashrus, like Pinchas.  I think he says this because if we allowed the shabavnikim to do it, Judaism would descend to utter anarchy and chaos.  Like in Mei'ach She'arim.)  He explains that the Rosh we quoted in the beginning, who seems to grant a blanket hetter for everyone to do so, is only talking about a sin that hurts other people, and the Rosh that allows intervention only allows it in order to save the victim, just as we find by a rodeif achar arayos or retzicha, but not by a rodef after avoda zara.

On the other hand, the Gemara in Ksuvos 86a that states that if a person refuses to build a sukka or take a lulav, “they beat him….” until he changes his mind.  This obviously is not talking about a sin that affects anyone else.  Even so, the Nesivos in CM 3:1 says that the din of Makin oso is not limited to Beis Din.  You and I can take the law into our own hands as well, even using physical coercion to force a person do his personal mitzva, like lulav or sukka, and certainly to stop him from doing aveiros now or in the future.  (The Nesivos in his Chavos Da’as in YD 161:6 seems to contradict this.)  The Ketzos in his Meshoveiv Nesivos there says, like the Maharshal, that the hetter for an individual to use physical force only applies where he is preventing an imminent aveira, not to prevent a future aveira, and he limits the Gemara in Ksuvos to Beis Din.


(By the way, although the Nesivos would allow you to hit someone who was talking during davenning, you are not allowed to embarrass him in public, to be malbin panav.  So take him outside and then smack him.)

The Netziv in Haamek She’lah 27:6 and the Shaar Hatziyun in OC 608:8 say that the Rambam, and therefore the halacha, only frees the vigilante from civil liability, but not that it is muttar to do so.  This is clear in both the Rambam in 3 Avadim 5 and 6 Dei’os 5, as cited by the Shaar Hatziyun.

In any case, everyone agrees that if a person has the ability to rebuke a sinner, that person is obligated to do so under the din of Arvus, under the din of “Hochei’ach Tochi’ach” and (Ramban there) because of “Arur asher lo yakim as divrei hatorah hazos.”

 So, as it turns out, it's only the She'iltos and the Nesivos in CM (self-contradicted by the Nesivos in his Chavos Daas in YD) that give a blanket hetter for individual vigilantism for aveiros.  The Maharshal limits it to individuals who are Muchzak B'kashrus.  Everyone agrees that Beis Din can impose and enforce religious requirements.

Going back to the beginning of this post, the question remains:  Does this concept, that we, either as individuals or as a society, impose our beliefs upon others by force, apply only to fellow Jews, or even to non-Jews??  I say that this would depend on whether you learn this halacha from, on the one hand, hochei'ach, which is specific to Amisecha, or Areivus, which is only lanu ulvaneinu- for Jews, or, on the other hand, from Arur.  I also pointed out that there were three possible motives for proselytization: charity, destruction of evil, and elimination of bad examples from the public forum.  These three possibilities are also implied respectively by the dinim of hochei'ach, arvus, and arur.


In practical terms, Judaism never ever was interested in imposing its beliefs outside of its home grounds.   While we certainly believe that it would be in the gentiles' best interest to adopt our theology, we never, ever, took a step to force this doctrine on others, even when we were a dominant power.  Maybe that says something about the calm confidence of Judaism.  We have nothing to prove to ourselves or to others.  If you want to join us in our Avodas Hashem, you're welcome.  If not, have a good life.

Eli, in the comments, quotes Avishag Hashunamis, who said (Sanhedrin 22a) חסריה לגנבא נפשיה לשלמא נקיט, that a certain person's profession of piety was merely a way of hiding his impotence.

Still and all, I maintain that there are real and true and fundamental distinctions between the behavior of the Jews and that of other nations, such as our excess of mercy, despite historical figures like Leizer Kaganovich.  Our behavior towards people of other religions, I believe, is another example of our unique character, even if it was not always strictly observed.

And here's an interesting yedi'ah.  The Rambam in 8 Melachim 10 says that Moshe Rabbeinu received a commandment from Hashem to impose the Seven Noachide Mitzvos on all mankind.  However,there's a fascinating discussion from R Dovid Pardo in his pirush on the Sifrei, in Ki Seitzei, on passuk 21:14, where he states that the Ramban there holds that the requirement of imposing the seven mitzvos on gentiles only applies to those gentiles that choose to live among us in Eretz Yisrael.  We have no obligation or interest in going outside of our borders and imposing our beliefs on the gentiles.  He brings that the Ra'avad also holds like that, and that despite the literal meaning of the Rambam, it could be that the Rambam agrees with this.

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On another note:  I recently came across something from the Breslevers, and since they are just now coming back from Uman, I found it to be an interesting window into what they're all about.  I'm just putting the link here, and you'll have to translate it yourself.

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For Rosh Hashanna

Yesterday, a friend was in the local Hebrew bookstore, and a woman with very little Jewish background was talking to the clerk about the Yamim Noraim.  She said that she knew that Rosh Hashanna is the day of judgment, and Yom Kippur the day of foregiveness, but she said she always wondered why judgment would come before forgiveness.

The question is very good, and was, famously, discussed by Reb Yisrael Salanter.  Coincidentally, yesterday I head what in Telz they call a shiur daas on that topic.  Rabbi Levin said in the name of his wife's grandfather, Reb Chatzkel Levenstein of Ponevezh, an answer in the name of Reb Yitzchak Blahzer.  He said that only after Klal Yisrael is mekabel ol malchus shamayim is it possible to have a day of kapara.  Only after we realize that Hashem is our king, and that by not doing what Hashem wants we are mored bemalchus, then Hashem is willing to be mochel.

I recently saw someone an interesting and relevant mashal that clarifies his idea.  A king sends two servants to do some menial job.  One is very skilled at this work, and does it perfectly, but feels that is an unfair imposition, and so he does it with resentment and a scowl.  The other is not particularly good at this kind of work, but he does it with pride, happy to be able to serve his king.  What is the difference between the two?  Who is the better eved?  The difference is not just who is the better eved.  The first one is not an eved at all, he is a moreid bemalchus.  The second one is a loyal eved.

So it's not just a matter of doing aveiros.  When we do mitzvos, if we do them besimcha, then our actions proclaim that we are avdei Hashem.  If we do the mitzvos, but we do them as if they are a burden, then we are moreid bemalchus.

Reb Chatzkel added that there is a difference between a melech and a talmid chacham.   A talmid chacham has the right to forgo his kavod; machal ahl kvodo, kvodo machul.  A king has no such right; melech shemachal ahl kvodo, ein kvodo machul.  But why can't a king be mochel?  Because his malchus is not his, it is a stewardship granted by the Ribono shel Olam, and the king can't be mochel on what is not his.  The Ribono shel Olam, on the other hand, is a King whose malchus belongs to Him, and so He can be mochel on His kavod.  But the Ribono shel Olam is only willing to be mochel on his kavod for his avadim.  First, we have to be Avdei Hashem.  Only once Klal Yisrael firmly and proudly declares, and demonstrates through their behavior, that Hashem is their king, only then is Hashem willing to be mochel ahl kvodo.  After Rosh Hashanna, when Klal Yisrael is mamlich the Ribono shel Olam, only then Hashem chooses to be mochel ahl kvodo.  Only then is the mechilla of Yom Kippur possible.

In fact, we can say that asking for kapara on Rosh Hashanna would be contrary to the idea of Malchus.  Why should a melech be mochel?  A melech is makpid that his servants do his will with pride and alacrity.  Bringing up our failings and asking that they be dismissed diminishes the whole concept of Malchus.

This enables us to discuss another question.  The Gemara in Bava Kamma 50a says "One who says Hashem is a "Vatran," his life will be mevutar.  In other words, one who says that Hashem dismisses sin, may his life be dismissed.  The point of the Gemara is that Hashems's justice is immutable and inexorable.  So how canYom Kippur bring forgiveness?  Isn't clemency a waiver?  The answer is that just as the Rama MiPano said that the din of Rove is not vitur

  (עשרה מאמרות היקוד דין ח״א ט*ם)

שהקשה הלא קיימא לן כל האומר הקב״ח וותרן הוא וכוי, וקיימא לן במשפט הקדוש לאל איום

 מי שרובו זכיות וטיעוט עונות נקרא צדיק ויצא בדימום, מהצה על מהצה הש״י כובש נושא

מעביר ראשון ראשון, וקשה הלא אפילו במיעומ עונות נקרא ויתור כיון שמוותרין לו עונות שבידו,

ותירץ הרב הקדוש הנ״ל, שאינו נקרא ויתור רק כשמוותרין שלא כמשפטי התורה, אבל מה שנמצא

כך במשפטי התורה בעולם הזה לא נקרא ויתור

If so, we can say that the din of Yom Kippur, even if it is mechapeir without teshuva, is that once Klal Yisrael as a whole is Mamlich the Ribono shel Olam, Hashem is mochel to His avadim.  This is a din, a result of what we do on Rosh Hashanna, and not vitur.

And what is the best way to be makabel ol malchus shamayim?  Chazal say that it is through Malchiyos, Zichronos, and Shofros.  But I like to say over the Tanchuma in Parshas Tzav, which I think is also key to kabalas ol malchus shamayim:

שאין תשובה לפני הקב״ת יותר מן הודייה

Perhaps we can apply the Tanchuma to the Gemara in Brachos as well:

ויאמר אני אעביר כל טובי על פניך ונו' וחנותי את אשר

אחון, ורחמתי את אשר ארחם.שמות לג יט

וחנותי את אשר אחון : אע״פ שאינו הגון. ורחמתי את

אשד ארחם : אע״פ שאינו הגון.

(ברכות ז א׳)

What's the shaichus of Hashem being ma'avir kol tuvo, and the kapara?  Maybe the pshat is that when a person realizes Chasdei Hashem and the opportunities Hashem has given him as a gift, then Hashem will be meracheim on him, even if he doesn't deserve it.  Hakaras Hatov is the key to Yiras Shamayim and to Kapara.

Once again, we see the idea of Gilu bir'ada, that Rosh Hashanna's avoda is to rejoice and to fear, to rejoice that Hashem allows us to serve Him as His avadim, and to fear His judgment.  A person who is properly mekabel ol malchus shamayim is in a position that enables the kapara of Yom Kippur.

Which brings us back to the Ibn Gabirol we once discussed.

אלהי, אם עוני מנשוא גדול
מה תעשה לשמך הגדול

ואם לא אוחיל לרחמיך
מי יחוס עלי חוץ ממך
לכן אם תקטלני לך איחל

ואם תבקש לעוני
אברח ממך אליך

ואתכסה מחמתך בצלך
ובשולי רחמיך אחזיק
עד אם רחמתני

ולא אשלחך כי אם ברכתני

Nitzavim, Devarim 30:2. ושבת עד ה'.... בכל לבבך ובכל נפשך ושב ה' אלוקיך את שבותך וריחמך Teshuva on Aveiros and Teshuva on Mitzvos.

Our parsha mentions the concept of Teshuva.  Teshuva might be one of the Taryag Mitzvos (Ramban here), or it might be too fundamental to be called a mitzva (Minchas Chinuch 364 explaining the Rambam in the Yad).  In any case, our pesukim are talking about Teshuva, and they tell us that teshuva can be doubly effective, that it not only ends punishment, but that it can also bring us to a state of grace and love and blessing.

The Mesilas Yesharim (perek 4) says that Middas Hadin, the Divine Attribute of Strict Justice, would not allow for Teshuva.  Under Middas Hadin, the punishment for a sin would be immediate and devastating, and the sin would be irreparable.  It is only through Middas Harachamim that these consequences are ameliorated.  The sinner is given time to repent, the punishment is diminished, and Teshuva  uproots and erases the sin entirely.  This modification of Middas Hadin is only possible through the Chesed, the charity, of Middas Harachamim.  (I've included the Hebrew and English text of the Mesillas Yesharim at the end of the post.  It's Elul, it's time to look at the Mesillas Yesharim.)

Reb Elchanan Vasserman asks the following question from the Gemara in Kiddushin 40b (which is also brought in the Rambam 3 Teshuva 3).

ר"ש בן יוחי אומר אפילו צדיק גמור כל ימיו ומרד באחרונה איבד את הראשונות שנאמר (יחזקאל לג) צדקת הצדיק לא תצילנו ביום פשעו ואפילו רשע גמור כל ימיו ועשה תשובה באחרונה אין מזכירים לו שוב רשעו שנאמר (יחזקאל לג) ורשעת הרשע לא יכשל בה ביום שובו מרשעו וניהוי כמחצה עונות ומחצה זכיות אמר ריש לקיש בתוהא על הראשונות

Briefly:  A life-long perfect tzadik that rebels at the end of his life loses all that he has done in the past.  Reish Lakish explains that this is not true if he sins out of some momentary desire or weakness.  It is true only when he recants and regrets his good deeds-- he is toheh ahl harishonos.  

From this Gemara we see that natural law mandates that regretfulness for past mitzvos erases all the mitzvos.    Reb Elchanan (Kovetz Maamarim, Ahl Hateshuva, p 21) asked the Chafetz Chaim, How then can the Mesillas Yesharim say that the power of Teshuva to erase past sins is a gift arising from Middas Harachamim?  According to the Gemara, regret is a natural and universal solvent: if you regret good acts, the good is erased.  If that's the case where the result is suffering and punishment, then kal vachomer (Meruba middas tova mimidas puranus) the same would naturally be true in the opposite regard- that regret for sin will erase the sins and prevent punishment.  Why does the Mesillas Yesharim say that the ability of Teshuva to erase sin is a singular and unparalleled gift from Hashem?

(Some people answer that only after the gzeiras hakasuv that Teshuva erases sin did it follow that Toheh ahl Harishonos erases mitzvos.  With all due respect, I think that's just infantile, a reflexive ‘lomdus’ that doesn’t make any sense.  The latter does not follow the former at all.  The protocol of Din does not have to echo that of rachamim.  That's the whole point of saying that midda tova is meruba.)

The Chafetz Chaim  answered that while it is true that all regret erases past behavior, Teshuva is unparalleled in two ways.  1. Teshuva brought about by fear of punishment does not mean that the baal teshuva regrets his aveiros like the Toheh, the sinner in Kiddushin, regrets his mitzvos.  A man who is doing Teshuva out of fear only regrets the deadly consequence of his sins.  Despite his lack of true regret, Teshuva meiYira erases his sins.  2. And if the Teshuva was from love of Hashem, Teshuva meiAhava, it doesn't erase the sin- it reconstitutes the sin into a meritorious act, as if it were a mitzva.  This is  unparalleled in the case of one who regrets having done a mitzva, and is the unique result of Middas Harachamim.

Reb Elchanan points out that the Ramchal's words do not seem to accord with the Chafetz Chaim's pshat.  The Ramchal said that even the erasure of sin is only possible because of Middas Harachamim, while the Chafetz Chaim said that erasure of any past mitzva or aveira is the natural result of charata, of regret. Also, Charata is Charata. If it works by toheh, it should work by teshuva meiyirah.

Reb Elchonon himself distinguishes between aveiros that are tzivuyim and aveiros that a pogem your neshama. The former are no different than toheh. The chiddush of teshuva is that it works even by the latter. Or, as some say in Reb Elchonon, that changing your identity from Rasha to Tadik or vice versa is not a chiddush. The only chiddush of teshuva is that it changes the past. (That which the Gemara says that Toheh loses schar, that is because a rasha can not get schar for mitzvos that he did.)

Rav Yosef Gavriel Behchhoffer offers a fascinating suggestion to answer the question. Rashi there says 

בתוהא - מתחרט על כל הטובות שעשה. R YG wants to say that Toheh is only where he regrets EVERYTHING good that he has done. This naturally results in losing his schar and his status. The chiddush of teshuva is that it works even when he does teshuva on ONE AVEIRA. That aveira is nimchal and erased and, if mei'ahava, the past becomes mitzvos instead of aveiros.

https://youtu.be/e8_r_YB9AVc?si=rlUi3QVETpJHKrE7&t=616

I'd like to point out that my reading of the pesukim in Yechezkel, both the pasuk brought in Kiddushim from perek 33 and also the passuk in Yechezkel perek 18 brought in Yoma 86, indicates to me that just as Teshuva can change aveiros to mitzvos, exactly so can Toheh ahl Harishonos, regret for past mitzvos, change them into Aveiros.  And it's not only my reading.    The Arvei Nachal (by the author of the Levushei Srad and the Tiv Gittin) on Parshas Va'eschanan Drush II, says exactly that.  This, too, does not seem to accord with the words of the Chafetz Chaim.

Also, I wonder, what kind of Toheh is the Gemara in Kiddushin talking about?  Is it talking about a Toheh that matches the Teshuva we are told to do?  Is a man called a Toheh only if he deliberately and thoughtfully reexamines the mitzvos he did, is deeply ashamed of them, mournfully regrets doing them, and makes a firm conscious decision to never do mitzvos again?  Does he have to re-create himself, as the Rambam says of the Baal Teshuva?  I doubt it.  It means just what it says:   that he regrets having done the mitzvos.  If that's enough to erase mitzvos, why wouldn't similar regret be enough to completely erase aveiros?  Why does teshuva require the wrenching effort of בְּכָל לְבָבְךָ וּבְכָל נַפְשֶׁךָ?

Unfortunately, this all seems to point toward something I've often quoted from a well known and highly respected Mashgiach that I've had business with.

 "Good Comes and Goes, but Bad is Forever."

He didn't put it in those exact words, but pretty close, and I think the aphorism sums up his philosophy, that a spiritual fall generates an indelible change that forever increases the risk of relapse. Spiritual advances, on the other hand, are fragile, easily lost, and effortlessly extirpated. They disappear easily, and when they do, they don't leave a trace.

Reb Yitzchak Hutner in his Pachad Yitzchok answered Reb Elchonon's question along the same lines (minus the cynicism.)  He said that going from life to death is part of the teva, the natural order of Hashem's universe.  Going from death to life is not.  Order requires constant energy, while disorder is the default state.  Anyone can be meimis a chai.  Not everyone can be mechayeh a meis.

Another way to put this: Middos Ra'os take root much more easily than middos tovos.  Uprooting them is much harder than uprooting good middos.  What is true for Middos is also true for the effect of mitzvos and aveiros.  That alone would serve to explain why Toheh is derech hateva, while Teshuva is lema'ala miderech hateva.  Besides being painfully obvious, the Beis Yosef in the beginning of Orach Chaim says this about Azus Panim. Bad behavior is dyo, an indelible dye, while good behavior is sikra, faint and superficial.  One would think that observing disgusting behavior is not likely to influence you to emulate that behavior.  But in our parsha, in 29:16, it says that if you observe the disgusting pagan rites, beware of the effect on you, and know that you might be influenced by it.  Similarly, the Gemara (beginning of Sotah, brought by Rashi in Ki Sisa) says "haro'eh sotah b'kilkula, yazir atzmo min hayayin."  If you see a Sotah ugly disheveled and publicly disgraced, be on guard!  You are in danger of following her example.  Avoid wine!  Thus, we see that the result of Toheh is natural, while Teshuva is practically a miracle.

But one can say another mehalach.  And do me a favor: after reading it, the teretz is obvious.  But it wasn't obvious before you read it, so don't give me a hard time.  Hakol b'chezkas sumin....

Toheh works like Kavana misnagedes in mitzvos (Rosh Hashanna 28).  Even if you hold Mitzvos einan tzrichos kavana, that is because (as Reb Moshe says in the Darash on Ushmartem es hamatzos, Shmos 12:17) stama lishma , or because if the person realized that he had done the mitzva he would be pleased, or because of the Rambam in the second perek of Hilchos Geirushin.  But certainly, the desire to do Hashem's will is fundamental to all mitzvos, and if you do the mitzva intending that it not be a mitzva, you have done nothing at all.  For aveiros, on the other hand, even if you do an aveira with kavana misnagedes, for example, you do the aveira because you enjoy it but have kavana davka not to transgress Hashem's will, it doesn't make a bit of a difference, you're still punished for the aveira.  And worse than that: when one does a mitzva and davka doesn't want to be mekayeim Hashem's will, the act of doing the mitzva is the biggest moreid bemalchus.  Of course his mitzvos turn into aveiros.

With these teirutzim we can answer a kashe on a Tosfos in Sanhedrin 37b.  The Gemara says that even though our courts are no longer empowered to administer capital punishment, Hashem makes sure that the appropriate punishment occurs.  Tosfos asks, but we see many people who deny the entire Torah who live and prosper?  Tosfos answers that perhaps their Bris Milah suspends their punishment and they are given the reward for that mitzva before they die.  The problem is that obviously these people are Toheh.  If so, then according to the Gemara in Kiddushin they should get nothing at all for their mitzvos!  But according to our teirutzim, there is no kashe.  Tosfos chose the mitzva of Millah very carefully, because Millah is different than all other mitzvos.  The din of Toheh only applies to mitzvos that a person does and whose effect derive from the intention to do Hashem's will, or whose effect is the positive result of the act.  But Millah is neither.  It is done on one person by another person, and its effects are absolute, no matter what the mahul wants or thinks, as David Hamelech pointed out.  That's why Avraham Avinu saves mehulim from Gehinom, but Moshe Rabbeinu doesn't do so for people who've done the other Taryab.  So while all other mitzvos can be erased through Toheh, davka Millah can not.  And now you see why Tosfos mentioned Millah davka.

I suppose I should write Reb Elchanan's teretz better, but that will have to wait.  Anyway, I like these teirutzim more, and they also answer the other kashes I mentioned above, about changing the mitzvos to aveiros and the ease of toheh compared to the difficulty of teshuva, and Tosfos in Chulin.

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Cited text of Mesillas Yesharim

, וזה, כי לפי שורת הדין ממש, היה ראוי שהחוטא יענש מיד תיכף לחטאו בלי המתנה כלל, וגם שהעונש עצמו יהיה בחרון אף, כראוי למי שממרה פי הבורא יתברך שמו, ושלא יהיה תיקון לחטא כלל, כי הנה באמת, איך יתקן האדם את אשר עיות והחטא כבר נעשה? הרי שרצח האדם את חברו, הרי שנאף, איך יוכל לתקן הדבר הזה? היוכל להסיר המעשה העשוי מן המציאות.

אמנם, מדת הרחמים היא הנותנת הפך השלשה דברים שזכרנו: דהינו, שיתן זמן לחוטא ולא יכחד מן הארץ מיד כשחטא, ושהעונש עצמו לא יהיה עד לכלה, ושהתשובה תנתן לחוטאים בחסד גמור, שתחשב עקירת הרצון כעקירת המעשה, דהיינו, שבהיות השב מכיר את חטאו ומודה בו ומתבונן על רעתו ושב ומתחרט עליו חרטה גמורה דמעיקרא כחרטת הנדר ממש שהוא מתנחם לגמרי והיה חפץ ומשתוקק שמעולם לא היה נעשה הדבר ההוא ומצטער בלבו צער חזק על שכבר נעשה הדבר ועוזב אותו להבא ובורח ממנו, הנה עקירת הדבר מרצונו, יחשב לו כעקירת הנדר ומתכפר לו. והוא מה שאמר הכתוב (ישעיה ו): וסר עונך וחטאתך תכפר, שהעון סר ממש מהמציאות ונעקר במה שעכשיו מצטער ומתנחם על מה שהיה למפרע.

וזה חסד ודאי שאינה משורת הדין, אך על כל פנים הנה הוא חסד שאינו מכחיש הדין לגמרי, שהרי יש צד לתלות בו, שתחת הרצון שנתרצה בחטא וההנאה שנהנה ממנו בא עתה הנחמה והצער. וכן אריכות הזמן איננו ויתרון על החטא, אלא סבלנות קצת לפתוח לו פתח תקון. וכן כל שאר דרכי חסד: כענין ברא מזכה אבא (סנהדרין קד), או מקצת נפש ככל הנפש (קהלת רבה ז כז), המוזכרים בדברי החכמים, דרכי חסד הם לקבל את המעט כמרובה, אך לא מתנגדים ומכחישים ממש מדת הדין, כי כבר יש בהם טעם הגון להחשיב אותם. אך שיותרו עבירות בלא כלום או שלא ישגיח עליהם, זה היה נגד הדין לגמרי, כי כבר לא היה משפט ודין אמיתי בדברים, על כן זה אי אפשר להמצא כלל. ואם אחד מן הדרכים שזכרנו לא ימצא לחוטא להמלט, ודאי שמדת הדין לא תשוב ריקם.

For on the basis of justice alone it would be dictated that the sinner be punished immediately upon sinning, without the least delay; that the punishment itself be a wrathful one, as befits one who rebels against the word of the Creator, blessed be His Name; and that there be no correction whatsoever for the sin. For in truth, how can a man straighten what has been made crooked after the commission of the sin? If a man killed his neighbor; if he committed adultery-how can he correct this? Can he remove the accomplished fact from actuality?


It is the attribute of mercy which causes the reverse of the three things we have mentioned. That is, it provides that the sinner be given time, and not be wiped out as soon as he sins; that the punishment itself not involve utter destruction; and that the gift of repentance be given to sinners with absolute lovingkindness, so that the rooting out of the will which prompted the deed be considered a rooting out of the deed itself. That is, when he who is repenting recognizes his sin, and admits it, and reflects upon his evil, and repents, and wishes that the sin had never been committed, as he would wish that a certain vow had never been made, in which case there is complete regret, and he desires and yearns that the deed had never been done, and suffers great anguish in his heart because of its already having been done, and departs from it for the future, and flees from it then the uprooting of the act from his will is accredited to him as the uprooting of a vow, and he gains atonement. As Scripture states (Isaiah 6:7), "Your wrong will depart, and your sin will be forgiven." The wrong actually departs from existence and is uprooted because of his suffering for and regretting now what had taken place in the past. 


This is certainly a function of lovingkindness and not of justice. In any event, however, it is a type of lovingkindness which does not entirely negate the attribute of justice. It can be seen as according with justice in that in place of the act of will from which the sin arose and the pleasure that it afforded, there is now regret and suffering. So, too, the time extension constitutes not a pardoning of the sin, but rather God's bearing with the sinner for a while to open the door of repentance to him.