Removing curlers from a shaitel on Shabbos

Originally Published: Parshas Acharei Mos-Kedoshim 5775 Vol. XVIII No. 29

This weeks question:

May a curler be removed from a shaitel (wig) on Shabbos? May a clip, usually used with a curler but sometimes used alone, that is currently holding the sheitel in shape, be removed on Shabbos? May it be used to keep the sheitel in shape on Shabbos?

The issues:

A) Gozaiz, the melacha of shearing

B) Menapaitz, the melacha of combing

C) Boneh, sosair, building, demolishing; mekalkel, destructive activity; davar sheaino miskaven, possible unintended consequences

D) Makeh bepatish, completing/finishing the production of a utensil

E) Muktzeh, the status of a curler

A) Gozaiz

The curler is spiky and has hairs wound around it tightly, and is held in place with a pin. When the pin is removed, the hair around it should be tightly curled, at least for a few days. Thus, the hair might not just fall away from the curler. It might be necessary to pull the hair aside, or to pull the curler away from the shaitel. Firstly, is there an issue of combing, as there is when a person combs his or her own hair? There are restrictions on combing hair on Shabbos.

The primary melacha involved here would be gozaiz, shearing a sheep for its wool. In the construction of the Mishkan, wool needed to be produced for the various uses in the coverings and clothing. Included in this category are all melachos done to remove something growing on a living being, such as cutting hair and nails, combing angora rabbits or goats for their hair, removing feathers or clipping them, and even clipping cuticles. When they are done to remove the item rather than to produce it, such as cutting nails, it becomes a melacha sheainah tzricha legufah, not done for its own sake. The Talmud debates whether this is included in the Scriptural melacha. There are some who maintain that gozaiz would have been done to clean the hides that were used without their hair as well. Thus, even if it just removed, it is considered the actual melacha. Nonetheless, all agree that it becomes a Rabbinical application of the melacha. When one combs his hair, he might also remove some of it. However, this depends on the way it is combed. If one uses a finetoothed comb, and especially if it is done vigorously, it is likely to remove hair, and it might even be a certainty. If it is done gently and with a coarse comb, and certainly if one just passes his fingers through the hair, there is a very good chance that none will be removed. Some poskim maintain that this debate really concerns the issue of boneh, building. The styling of the hair is considered boneh by the Talmud.

Braiding the hair is also forbidden, due to this and other possible melachos. Parting it is debated. [The term shaitel appears in this context, when the stringent opinion seems to forbid it. However, in this context it refers to styling one’s natural hair.] Ashkenazim forbid using a comb for this, but permit using ones fingers.

This raises the question in our case, whether there is any difference in how tightly the curler is wound, and in how hard one pulls it out. Many poskim maintain that gozaiz should not apply to a shaitel at all. Removing hair from a hide applies whether the animal is alive or dead. However, in its current state the hair is not attached to a hide or skin. Other issues, such as boneh, could arise, as we shall see, but the issue of combing may be dispensed with. However, some poskim do apply gozaiz to combing a shaitel. [See Shabbos 60a 94b, Poskim. Tur Sh Ar OC 303:2627 340:12, commentaries. Minchas Shabbos 80:117. Avnei Nezer OC:170171. Kitzur Hil. Shabbos 18:4, notes.]

B) Menapaitz

After the fleece is sheared it is a matted mass of fibers. It needs to be combed out so that the fibers can be spun. This melacha includes other forms of fiber preparation, such as beating a stalk to separate its fibers [see below]. The Talmud even entertains a view that combing the hair while it is on the animal can also be considered the melacha. The reason we do not follow this view is that it is not the normal way to do it. This implies that it would still be Rabbinically forbidden. [Fibers from non-living sources, such as cotton and linen, may not be combed either. However, one view cited by the Talmud says that their av melacha, major category, is dash, the melacha of threshing. The fibers need to be drawn out from their original material. This could mean that if one has an artificial hair shaitel, the entire issue does not apply. It cannot be included in menapaitz, because it does not come from an animal. It cannot be included in dash, because it does not grow’ like plant fibers. Our case involves a humanhair shaitel. Others, however, include linen with wool as the same melacha. They forbid any kind of combing fibers to spin into a string or thread, including gut.] There appears to be a debate on whether combing something out to be left smooth, but not to be spun afterwards, is also included in this restriction. Furthermore, if the fibers had already been combed out once, it could be argued that one cannot be liable for recombing them.

Accordingly, the issue would arise in our case. Assuming that the shaitel will be combed somewhat when the curler is removed, due to the ‘teeth on the curler, is this menapaitz? The purpose of the combing is not to spin a thread. Each hair is separate. The shaitel was combed before. Is there an issue with simply untangling the shaitel? The poskim debate this matter. [See Shabbos 73b 74b, Poskim. Rambam, Shabbos 9:esp. 12. Kalkeless Shabbos, Menapaitz. Kitzur Hil. Shabbos 20. 39 Melachos (Ribiat) 13.]

C) Boneh, sosair; mekalkel; davar sheaino miskaven

Another issue arises when some of the loose hairs are removed. One may not build anything. Although there is much Talmudic debate about whether this applies to portable utensils, and further debate by the poskim, it is basically forbidden. We mentioned that braiding hair is boneh. Our case might be different because it is not attached to the body. While the Talmud seems to include a human body in the general definition of boneh, this does not necessarily apply to a utensil. However, shaping a sheitel professionally is definitely forbidden. It could also involve some of the processes of laundering, such as pressing A wig is an item of clothing, and in fact, is a piece of cloth with hairs attached. Thus, pinning the sheitel could involve boneh as well. This would depend on various factors. If the sheitel is not being shaped, but being kept in shape, there is no actual building. Thus, putting the curlers could involve some form of boneh, but pinning it or placing a clip in it probably does not involve this. In addition, even if it would restore its curls somewhat, it would depend on the permanence of the restoration. As we mentioned, braiding is considered a melacha, but shaping a hairstyle with a comb is debated. Using the clip is similar to using a comb. Some poskim would not forbid it on a persons hair. On a wig, it could be further mitigated, since there is debate on boneh on a utensil to begin with. Since one does not combine various components by curling, it would not necessarily constitute boneh of a utensil. Attaching a permanent clip would be more problematic.

Removing the loose hairs is sosair, demolishing. It enhances the sheitel. Accordingly, if the wild hairs are removed at the time that the curler is removed, this melacha could result. If the hairs do not need to be removed, it could involve mekalkel, destructive activity. This is usually not considered a Scriptural melacha, but is forbidden Rabbinically. The poskim discuss brushing clothing with a brush that could shed. According to the stringent view, one may not brush a sheitel that will shed. Furthermore, the lenient view considers it a clear case of mekalkel on the brush, whereas the sheitel is improved when wild hairs are removed. However, some poskim maintain that using a brush that sheds does not involve melacha, but involves zilzul Shabbos, demeaning Shabbos.

If the result is not inevitable, but is a possibility, the activity is permitted. The Talmud debates davar sheaino miskaven, a possible resulting melacha when a permissible activity is done. We follow the opinion that permits it. Thus, unless the sheitel is already falling apart, it is likely that hairs will not come out when the clip or curler are removed. [See refs to earlier sections. Rema OC 337:2, commentaries (Dirshu 24).]

D) Makeh bepatish

Putting finishing touches on a utensil is Scripturally forbidden. The classic case of this melacha is banging out the dents in a metal utensil. It applies to putting finishing touches on a utensil that make it usable. This applies in many ways to items of clothing. One may not fill a pillow, thread laces into shoes, or pick of excess threads from a garment. In our case, the sheitel is fully usable. However, if one considers it unwearable when it is disheveled, shaping it again involves makeh bepatish, or at least, tikun kli, repairing a utensil. This is either a Scriptural subcategory of makeh bepatish, or a Rabbinical extension of it, depending on the case.

Combing a sheitel into shape is thus more problematic in this aspect than styling the hair. Assuming that the hair is not braided, but parted by hand, the poskim permit it. It is not considered boneh, and the person is not a usable utensil. The sheitel is a utensil, and making it usable involves this melacha. Therefore, the poskim maintain that shaping a disheveled sheitel is forbidden. Shaping a slightly blown sheitel is permitted. This is done all the time, and is not considered activity that makes the utensil usable. The Talmud permits threading a lace into a shoe that had laces when Shabbos began. Although the laces were subsequently removed, they may be returned.

Accordingly, curling the sheitel properly does involve makeh bepatish. Pinning or placing a clip in it to preserve its shape does not necessarily involve any melacha. It would depend on whether this is always done, and whether the sheitel is usable without it. It could be compared to folding clothing. One may not fold clothing into its creases as part of the laundering process. One may fold it without planning specific creases to keep it tidy. One may hang clothing on a hanger. Furthermore, if the sheitel was pinned when Shabbos began, then the pin was removed for wearing, it may be returned afterwards. It does not perfect the sheitel, but helps it retain its shape.

The Talmud discusses removing clothing from a press, or shoes from a form. A professional press is tight. Removing the clothing has the appearance of a melacha, including sosair on the press. Presses were two separate pieces of wood clamped together. A home press is permissible. The clothing may not be returned to the press for the next day. Presumably, if one returns them on Friday night to keep their shape for Shabbos day, nothing is violated. The shoes may be removed from their form. In our case, it would appear that unclipping the pin is permissible. The curler is more problematic. The two parts are tight, and separating them literally pulls them apart. However, since they are two small parts of a utensil always used together. This is not like a press made of two large pieces of wood. It is more like a bottle with a tight cap. [See Shabbos 48ab 75b 102b103a 113b 141a, Poskim. Tur Sh Ar OC 302:14 340:8 39 Melachos 36:3:II:B:d.]

E) Muktzeh

The poskim debate the status of the press and the shoe form, especially after the item has been removed. The issue is that the original purpose of a shoe form is to shape the shoes, a case of makeh bepatish. The form is thus a kli shemelachto le‘issur, utensil with a forbidden use. On Shabbos, this is muktzeh, except when it must be moved to free its space of for an alternative permissible use. Removing the shoes involves moving the form. Since the shoes are the ‘spaceneeded, it may be moved. If the shoes are not tightly wedged in the form, the poskim debate whether it is preferable to remove the shoes without moving the form. Some poskim apply a similar ruling to clothing hung with clothespins. If possible the pins themselves should not be moved. In our case, the curler is tightly wound into the sheitel. One would be allowed to remove it for the space the sheitel. However, the actual curler is muktzeh either way. Its normal use is to wrap the sheitel around tightly with an eye to shaping it. This would indeed be a melacha of some sort, similar to shaping shoes in a form. The clip is used to retain the shape of the sheitel. It is like putting shoes in a shoe tree to keep their current shape, which the poskim permit. Accordingly, the clip should not be considered muktzeh. [See Shabbos 141ab, Poskim. Tur Sh Ar OC 302:4 308:14, commentaries (Dirshu).]

In conclusion, one may remove both the curler and the clip from the sheitel. The curler may not be put back into it, and remains muktzeh. The clip may be returned to the sheitel, if it will be worn again later on the same Shabbos.

Sponsored in memory of Rochel bas Harav Moshe Chaim ah, and Hagaon Harav Moshe Chaim ben Harav Avraham Yissachar, whose yahrzeits are the 13th and 16th of Iyyar, respectively.

© Rabbi Shimon Silver, May 2015.

Covering a birdcage on Shabbos

Parshas Behar-Bechukosei 5775 Vol. XVIII No. 31

This week’s question:

May a birdcage be covered with a towel or blanket on Shabbos?

The issues:

  1.  Boneh, the melacha of building
  2.  Lavud, the concept of a lattice being considered solid
  3.  Tzaar baalei chaim, prevention of pain to animals, specifically on Shabbos

A) Boneh

This Scriptural melacha forbids building or adding to a structure attached to the ground. The same is true of sosair, demolishing to facilitate further building. Destructive demolition is not forbidden Scripturally. The smallest improvement or demolition that allows for building on a site is forbidden Scripturally. Building a utensil is generally not included in boneh. However, many poskim maintain that this exclusion applies only in the early stages of its construction. Completing a kli is forbidden Scripturally. Others consider this makeh bepatish, finishing touches, rather than boneh.

Minor repairs, such as returning a door handle to its spindle or returning its screw and tightening them involves a melacha. On a structure, it is unquestionably forbidden Scripturally. On a complete utensil it is either makeh bepatish or boneh (or both). Putting them back loosely is forbidden Rabbinically, as a precaution against tightening them.

Rabbinically, building an ohel arai, temporary structure, is forbidden, as a precaution against ohel kavua, a permanent structure. The Rabbinical prohibition does not apply to minor construction. The ohel must have characteristics of mechitza, partition, and according to many poskim gag, a roof. These must also confer new status on the spaces behind or under them. Thus, the third wall of a sukah, which validates it halachically, may not be erected. A single wind shield on a beach may be erected. Opening a folding chair does not ‘create’ a new usable space underneath. However, adding a gag on top of existing mechitzos is forbidden even when the space underneath is not needed.

Another difference between ohel arai and Scriptural boneh is that adding to an existing structure is boneh. Adding to an existing ohel arai is permitted. If one covers a sukah with one tefach, hand-breadth, of tarpaulin [excluding the rolled up part] before Shabbos, he may roll the rest over on Shabbos. The first tefach constitutes a gag, and mosif, adding to ohel arai is permitted. Some things only give the appearance of adding to a structure. They are forbidden as nireh kemosif al habinyan. This is not an issue with ohel arai.

Sometimes, the two seem to overlap, such as hanging a temporary curtain across a doorway in a permanent house. There is a special requirement that this mechitza not be attached too well, to avoid the appearance of mosif al habinyan. It may not be tied down at the sides and the bottom. If it does not serve as a partition, such as a curtain covering a glass window, it is not a mechitza at all, and certainly not a status-affecting one. One may hang this curtain and tie it down, temporarily. One may not use nails to attach it. Nails involve Scriptural boneh in their own right. Attaching it permanently would also involve boneh. [See Shabbos 31b 47a-b 102b 122b 125b-126a 146a Eruvin 34b-35a 102a etc, Poskim. Tur Sh Ar OC 313-315, commentaries. Ch. Ish 52:13.]

B) Lavud

In our case, the cover allows the bird to feel that it is dark. On Shabbos, when the lights remain on, it is even more important. The problem seems to be that the cage is an open structure. Placing the cover on it closes the space. However, obviously, the cage is also an enclosed structure, with mechitzos and a gag. Nonetheless, the covering adds to the structure. Does this constitute mosif to a building, an ohel arai, or a utensil?

The poskim permit covering a table with a cloth. Firstly, the cloth lies right on top of the existing table. In order to be forbidden, there must be a space underneath that qualifies as an ohel. This is a cube of space one tefach in each dimension. If the cloth were suspended above the surface of the table by one tefach, this would raise the issue of boneh. As for the sides of the tablecloth that drape down, they are not true mechitzos to separate an area from another. By the same reasoning, one may spread a tarpaulin over sechach of a sukah on Shabbos or Yomtov. As long as the tarpaulin is directly on top of the sechach, it does not create a new ohel space underneath.[A separate issue must be addressed with regard to moving the sechach while spreading the tarp. The sechach is muktzeh, which can arise in our case as well. However, from the perspective of the tarp itself, there is no issue.] The aforementioned requirement to unroll it one tefach before Yomtov applies when there is a gap between the tarp and the sechach. By leaving the first tefach unrolled, one has created the ohel arai before Yomtov. Unrolling it further constituted mosif al ohel arai, which is permitted.

When placing a lid on a large barrel, or a board on two boxes to form a table, the Talmud requires the ‘building’ to be done in an unusual manner. One would hold the board in the air and place the boxes below it. In our case, this would mean spreading the towel out before putting the cage under it. In and of itself, this could be problematic if it is done for the space underneath. In the case of a lid or a board, there are no automatic sides. The towel will have ‘sides right away. In addition, most poskim consider the cage muktzeh. It has no use but to hold the bird. The bird is considered muktzeh, because it has no true use on Shabbos. Therefore this unusual manner would not work.

Our issue is whether to consider the ceiling of the cage an existing ohel structure. Then, adding a layer on top would be no problem, like the tarpaulin on top of the sechach. In our case, the additional layer seems to create a whole new canopy. However, the poskim clearly permit adding to a canopy in this way. In the case of the sukah, the sechach is not solid. There may be many spaces between the slats, as long as there is more shade than sunlight. In addition, it is not waterproof. The addition of the tarpaulin certainly adds a dimension to the ohel. Yet, as long as one does not raise the tarp, it may be placed directly on top of the sechach. Accordingly, even if the new layer adds to the structure, it is permitted. Extending an ohel from one tefach across a longer area is mosif. Placing it directly on top is not even mosif. Thus, if the ceiling of the cage is already considered an ohel, the towel is no worse that a tablecloth on a table.

However, the question is that here there is an obvious intent to make a tent. The ceiling is totally insufficient for the shade. It is made up of thin strips of metal with far more space between them than the solid part. Thus, it could be argued that there is really no solid surface on which the towel is placed. Furthermore, the towel is also draped down the sides. Here, too, the sides are indeed a mechitza to separate the bird from the outside of the cage. However, they are also made up of this strips with far more spaces than solid ‘wall’. Does this mean that they cannot be considered an ohel?

We mentioned that to permit spreading a shade over an area on Shabbos, one must unroll it at least one tefach before Shabbos. The Talmudic source for this is: one ties a rope within three tefachim of the sides, but more than one tefach distant. He has created a ‘solid’ space to permit rolling the tarp over the entire area. The logic is a halachic concept called lavud. This means that the Torah recognizes that in seemingly solid surfaces there can be spaces that do not detract from their halachic status as solid. Up to the three tefachim of space can be considered filled in. Thus, by placing the rope more than one tefach from the side, one has created a solid stretch of one tefach covering. Rolling the cover over this is now only mosif.

According to the poskim, the Talmud goes even further. One may roll the covers on top of a bed lengthwise, if each one does not form an ohel. The problem is, when they are all combined, one has a full size ohel. The answer is given, that the concept of lavud is not invoked lechumra, to forbid something, but only lekula, to permit it. Therefore, the separate pieces are not considered joined to create an ohel. Stretching strings across an area with less than three tefachim spaces between them does not count as making an ohel. Some poskim add a caveat. One could, theoretically, create an entire ohel on Shabbos, by stretching the string within three tefachim of the wall, and then cover the space with a canopy, because he is simply adding to the existing cover. These poskim maintain that this would be forbidden, due to the obvious intent.

The birdcage is at the very least a case of lavud. The entire area is considered covered solid. There is not even an issue of being mosif. It is like spreading a tablecloth over a solid table. In this case, it is even better, the sides are also existing mechitzos for these purposes. The only difference is that one does it for the space inside. However, in light of the Talmudic discussion, lavud takes care of the issue. Furthermore, one could even cover the cage with its own ceiling on Shabbos, since we do not say lavud lechumra. One could not cover it specifically in order to cover it again with the towel, according to the view of the stringent poskim. [See Shabbos 137b-138b Eruvin 102a-b (Rashi 2nd explanation, Tosafos), Poskim. Tur Sh Ar OC 315:2-6 8, commentaries. Shmiras Shabbos Kehilchasa 24:10-11, notes.]

C) Tzar baalei chaim

The clear assumption is that tzaar baalei chaim is forbidden.There is an ethical concept of achzarius, cruelty, in general. However, the Talmud considers tzaar baalei chaim a halachic issue. An ethical concept could not be invoked to override a halachic concept. A halachic concept might override another halachic concept, depending on the context. The Talmud debates whether tzaar baalei chaim is considered a Scriptural mitzvah or whether it is Rabbinical. Though the ethical concept might apply logically, which is usually considered Scriptural, the halachic concept might have been institutionalized Rabbinically. The consensus of the poskim is that the conclusions drawn by the Talmud are to follow the opinion considering it Scriptural.

There is no specific mitzvah forbidding general cruelty to animals per se. A number of mitzvos forbid or require certain behaviors with regard to animals. In many of these cases, the underlying theme, or one of the themes, is the prevention of cruelty to the animal. The commentaries view these as the basis for the mitzvah. One example of such a mitzvah is the obligation to help one whose donkey is overloaded. The mitzvah seems to be an interpersonal obligation, to help one’s fellow Jew. By parsing the mitzvah, it becomes clear that there are situations when there there is no obligation to help the owner. Yet, there is always an obligation to help the innocent animal.

Tzaar baalei chaim is included in the considerations for certain applications on Shabbos. For example, there are Rabbinic restrictions on feeding and handling animals. Some involve muktze, moving items that are not meant to be moved on Shabbos, or tircha, too much effort. If an animal has become very dependent on being force-fed, one may force feed it in certain ways. If an animal needs help getting out of a hole or a pool, one may do certain things that would otherwise be forbidden. If an animal is carrying a load that includes muktze items, one may place pillows under it and loosen the load so that it falls. An itchy animal may be scratched with certain types of tool. In our case, this could be invoked draping the towel over the muktzeh cage, thereby moving it a litlle. [See Emor 22:28 (Targ. Yon, Midr.) Shoftim 20:19 Ki Saitzai 22:6-7 (Ibn Ezra, Ramban) 22:10 (IE Daas Zekainim, Baal Haturim). Shabbos 53a 128b 154b 155b Beitza 23a Baba Kama 91b Baba Metzia 31a-33a 85a Avoda Zara 13a, Poskim. Chinuch 294 451 545. Tur Sh Ar OC 305:19 324:9-10, YD 24:8 116:7 117:Taz 4 (Darkei Teshuva 35 44 etc.), EH 5:14, commentaries. Sh Ar Harav, hil. Tzaar Baalei Chaim. Kitz. Sh Ar 191.]

In conclusion, the cage may be covered with a towel or blanket directly on top of it.

On the parsha … If [one] sold his ancestral field .. it shall return at the Jubilee. If [one] sold his ancestral house in a walled city .. if he did not redeem it after a full year .. it shall not be restored to his ownership at the Jubilee. Houses in open cities that have no wall surrounding them shall be considered like fields .. they are restored at the Jubilee. [25:29-31] A field is the source of livelihood. It is restored at the Jubilee. Once a house has been abandoned for a year, the owner does not feel a loss if it is not restored at Yovel. Houses outside walled cities are for farming workers. They are like fields. [Ramban]. Why would a farmer be so connected to his house, while a walled city dweller would abandon it? Targum Yonasan says that these houses are like “canopies spread over the fields”. Perhaps this means that those who live there feel that they are really living in the fields that they tend. The houses are merely shelters that are spread out when they are needed. However, for them, the field underneath remains the same “home”.

Sponsored by Robin Knee in memory of Allan Goodkind, R. Avrohom ben Kalman Leib ztl whose yahrzeit is the 29th of Iyyar.

© Rabbi Shimon Silver, May 2015.

Maaser for a bookcase

Originally Published: Parshas Naso 5775 Vol. XVIII No. 33

This week’s question:

May maaser money be used to purchase a book-case for sefarim purchased with maaser kesafim money? May he hire a struggling carpenter to build it, and pay him maaser?

The issues:

A) Maaser kesafim, tithing income

B) Vehechezakta bo, the mitzvah to help a person struggling financially

C) Spending maaser on a mitzvah

D) Buying sefarim with maaser

A) Ma’aser Kesafim [Sections A and B excerpted from Halochoscope X:45]

Maaser means a tenth or tithe. The Torah obliges the farmer to tithe his crops and new livestock. It is given to the Kohain, the Levi, the poor. Maaser sheini is kept by the tither, and is later taken to Yerushalayim and eaten there, mostly as an offering. Maaser Kesafim, tithing one’s money, is modeled on crop tithes, but linked to the mitzvah of tzedaka, charity. Tzedaka is a Scriptural obligation, positive when giving, and negative when refusing, despite its appearance as a voluntary act of kindness and generosity. It is forbidden to refuse a plea for alms by the poor, and communal authorities may force individuals to donate. They can assess an amount, graduated by means, and seize goods or property as collateral. There are basically four types of tzedaka: (i) When a poor person asks for alms one must provide him with basic needs; (ii) Communal compulsory collections for the community poor, kupah vetamchuy; (iii) Nidrei tzedaka, a self-imposed vow, undertaking, to gain merit for the sick, the souls of the deceased, in repentance or thanksgiving; and (iv) Maaser kesafim.

The basis for the obligation is found in the Talmud, based on a vow undertaken by Yaakov Avinu. He promised to ‘give back’ a [double] tenth to Hashem, i.e., a fifth of all that Hashem would provide him with. The simple interpretation of the passage is a Rabbinically mandated maximum limit on the amount one should spend on mitzvos in order to avoid dependency on tzedaka. In the process, we derive the praiseworthiness of ‘giving back’ a portion of one’s earnings to Hashem. It is also supported by a Midrash linking tithing money income to crop tithing. The simple outcome of this would be a Rabbinic obligation to donate one tenth of one’s income to tzedaka. For those who wish to perform the mitzvah in the best possible manner, one fifth would be best.

There is a view that it is a Scriptural obligation. A third view considers it neither Scriptural not Rabbinical, but a minhag, recommended positive practice. Some suggest that one who has not yet begun the practice should announce that he is doing it bli neder, without undertaking a vow. He may also stipulate how he plans to use the tithed money. He could reserve the option to use it for mitzvos other than tzedaka for the poor, provided the mitzvos are not outstanding obligations. The most ideal would be to set aside a fifth, using one tenth for tzedaka and the second tenth for a free loan fund (vehechezakta bo). [See Kesubos 50a, Sh. Mk. Taanis 9a, Tos. Pe’ah 1:1, Shnos Eliyahu. Sefer Hamitzvos A:195 L.S.:232. Tur, B.Y. Sh. Ar. Y.D. 249, 331, commentaries, Ar. Hash. Noda Biyehuda I:YD:73. Tshuvos Chasam Sofer YD 229. Igeress Hagra. Ahavas Chesed 2:19, etc.]

B) Vehechezakta Bo

The Torah says: If your brother shall [begin to] fall and his hand shall falter, you shall strengthen him … and your brother shall live with you. ‘Strengthen’ implies that it is important to help before he falls all the way and needs to be ‘picked up’. One should provide ways to stop the poor man falling to the point that he needs to ask for charity. Though written in the style of an independent mitzvah, it is counted as part of tzedaka. Rambam lists eight levels of tzedaka, the highest being the fulfillment of vehechezakta bo. Make him ‘live with you’ (hachayaihu) by sharing rather than giving.

The recommended ways to fulfill this are: giving him a gift; providing him with a free loan; forming a partnership with him; providing him with work. If the gift is given before he is impoverished, he will not be embarrassed to accept it. A loan should have easy repayment terms. The latter two are the ideal, with utmost being the partnership. The former two cases may be paid from tzedaka monies, according to some poskim. The latter two involve personal gain, which may probably not be done with tzedaka money.

Accordingly, there is indeed an obligation to do what one can when one knows of the situation. However, it is difficult to say that one who neglects it has not fulfilled tzedaka. He could still fulfill it on a lower level. [See Sifra Behar 25:35. Rambam, Matnos Aniyim 10:7. Tur, Sh. Ar. OC 249:6, 251:6, commentaries. Ahavas Chesed II:21 (footnote ke’ein), Tzedaka umishpat 1:3185]

C) Using this money for a Devar Mitzvah [excerpted from Halochoscope XI:26.]

As mentioned, there is a way to reserve the option to choose how to spend his maaser. Not all poskim consider it designated tzedaka money. Moreover, some maintain that it is not even a Rabbinical ordinance, but a minhag. Therefore, some permit using it for a devar mitzvah, to cover the expense of another mitzvah. We mentioned a suggestion that before undertaking this practice one stipulates that he only plans to do so if he has the right to use it for devar mitzvah. However, there are limitations to this usage.

Ma’aser money is considered matnos aniyim, gifts due to the poor, similar to the agricultural tithes for the poor. It is not considered one’s personal fund, since it does not belong to him. He has discretion on how it should be distributed or spent in the same way that one can choose how to distribute his tzedaka. In fact, the regular tithes have the same quality. One may choose which kohain he wishes to give his terumah tithe, and to which levi he wishes to give his regular maaser rishon. There is even a debate on whether this discretion, knows as tovas hana’ah, the benefit of cultivating favor by choosing a certain recipient, is considered a monetary asset. One might accept payment from a third party to give the tithe to a person of the third party’s choice.

Since it is not his personal fund, the one separating it may not use it for mitzvos that are outstanding personal obligations. This is based on the festival offerings and maaser sheini. In Temple times one had to separate maaser sheini most years. This was taken to Yerushalayim and eaten there, or redeemed and transferred to money that was taken to Yerushalayim to be spent on food. It was not to be used on other expenses. The Talmud debates whether it is still considered one’s personal fund, but limited to spending on food items. The ideal way to spend it was on animals that would be offered as korbanos shlamim, that are eaten by the owner (except certain parts burnt on the mizbaiach and parts eaten by kohanim). One is also obliged to make three offerings at the festival season: re’iyah, chagiga and simcha. Re’iyah is a burnt offering, and chagiga is eaten as a shlamim. Both are obligations in their own right, while for simcha one need only eat meat of an offering that was anyhow offered. Thus, one may use maaser sheini for simcha, but not for chagiga. Chagiga is an outstanding obligation. One could not use someone else’s money to discharge this obligation. The Torah instructs one to use specifically chulin, unconsecrated money, for outstanding obligations. Simcha requires a korban of any kind be brought, which is done anyway with maaser sheini money.

Based on this, one may not spend maaser kesafim on outstanding obligations. A common case would be payment for one’s children’s Torah teachers. This is a mitzvah obligation that one usually pays for. Paying for it with maaser would be like paying off a debt with other people’s money. [See See Chagiga 7b-8a, Gitin 30a-b, Tosefta Peah 4:16, Poskim. Tur Sh. Ar. YD 245:4, 249:1, 331:146, commentaries. Halochoscope X:45.]

D) Buying sefarim with maaser money

The poskim debate using maaser money to purchase sefarim. The opinions range from those who permit buying sefarim for personal use, to those who forbid it even if the sefarim will be loaned to others. One may donate a gift of sefarim to an eligible recipient. However, if the sefer will belong to the donor, he is spending the money on himself. On the other hand, he only buys the sefer to use in mitzvah performance, Torah study.

If he buys the sefer to loan to anyone who needs it to study, he has not truly spent the money on the poor. However, he has dedicated the money towards a mitzvah that is not his own obligation, nor will he limit the usage to himself. In a sense, he is spending it on a voluntary mitzvah, and at the same time, spending on others. The sefer will always ‘belong’ to maaser, but the donor will have tovas hana’ah.

Some say this makes most sense according to the view that maaser is a minhag. Indeed, this practice is cited as a minhag as well. Some speculate that it was formally instituted due to historical events. When holy literature was destroyed by the church, due to the scarcity of the hand-written sefarim, the rabbis enacted a minhag to encourage those who had sefarim to loan them. Thus, some say that while they cannot deny the validity of the view permitting it, it no longer applies nowadays. Some say that the type of sefer would need to be one that is commonly used. Since everybody has printed common sefarim, how could one reasonably claim to be providing a need for the poor! Others maintain that based on this, one may only purchase rare sefarim. While they will not be used all the time, he is certainly providing a valuable service to others.

Others, however, do permit using maaser for sefarim that will be loaned to others. Some poskim require making a note in the sefer that it has the sanctity of maaser. This will prevent it becoming mixed with his personal sefarim. When the time comes, his heirs will know that these sefarim were bought with this special provision.

Assuming that one relies on the lenient view, our questioner would like to use maaser money to buy a bookcase to house his maaser sefarim. The issue seems to be that this is not being loaned to others. It is for his own convenience. If one were to argue that he needs a space to store the sefarim, and that he should be permitted to use maaser for it, the same argument could be taken ad absurdum. Just as people are entitled to claim a part of their home as an office for reporting purposes, this person will claim a part of his home overheads from maaser! Rather, he should designate a section of his own bookcase, with a sign on it saying that these sefarim are maaser and free to be borrowed.

However, there is mitzvah usage in a sefarim shelf. Based on this, one could make the case that it can be purchased with maaser money in our case. A sefer has sanctity. The shelf, which serves the sefer has sanctity as well, on a lower level. Thus, a bookcase has some measure of tashmish kedusha, serving sanctity, or tashmish detashmish, indirect service. Unlike a home office, one is buying these shelves specifically to service the sefarim. May one use maaser for this?

When using maaser sheini to purchase sealed packaged items, one need not deduct the cost of the packaging, even though he will be recycling it for personal use. This is because it cannot be purchased without the packaging. If one could buy it loose, he should not use maaser sheini for the utensils. In our case, the person can use his own shelves. However, in our case, the person intends to use the purchased shelves ‘permanently’ for the maaser sefarim. This could perhaps be included in the costs of the sefarim. [See refs section A and C. Maaser Sheini 1:4, Megillah 25b-27a, Poskim. Tur Sh Ar OC 154:3, commentaries. Tzedakah Umishpat 6:9 15:26-27, notes. Derech Emunah I:Matnos Aniyim 7:4 (BHL). Maaser Kesafim (Burstein) 15. Maaser Kesafim (Albert) II:2.]

To mitigate the issue, the person will hire a poor carpenter. If the work being done is for his own benefit, he could not use maaser. He might be able to add some maaser to the basic cost price of the work. However, he feels that he does not need this work for himself at all. Therefore, he should be permitted to rely on a combination of the factors mentioned: the bookcase serves the maaser needs, that is, the sefarim; it serves those who will be borrowing the sefarim; it is really more for their convenience than for his own; he  will use this opportunity to give work to a poor man.

In conclusion, one may use maaser money for this bookcase with the following provisions: it must be prominently marked as such; if he wishes to be able to use it for mundane uses in the future, he should make sure to purchase it back from maaser at that time.

On the parsha … Whatever a man consecrates shall be his own. Whatever each man gives to  the Kohain, it shall be his own. [5:10] To whom does ‘his own’ refer, the donor or the Kohain?

It teaches that the tovas hana’ah is the right of the donor. It also teaches us that if one withholds the donations for himself, he will suffer financial loss. [If he gives it away, he will gain, as though he is keeping it for himself [see Rashi]. Is this not like making the donations for ulterior motives? The Torah wishes to covey the message that the donor is a trusted guardian appointed by Hashem. He must use his judgment and discretion to distribute wisely.

© Rabbi Shimon Silver, May 2015.

Kindling Yahrtzeit Light on Yomtov


Originally Published: Parshas Bemidbar/Shavuos 5775 Vol. XVIII No. 32

This week’s question:

May a yahrzeit lamp be kindled on Yomtov, when there is no chance to kindle it before Yomtov, such as the second night, or the first day that falls on Motzai Shabbos?

The issues:

  1.  Yahrzeit observance
  2.  Ner neshama, the yahrzeit lamp
  3.  Kindling on Yomtov

Continue reading Kindling Yahrtzeit Light on Yomtov