Rabbi Jachter's Halacha Files
(and other Halachic compositions)

A Student Publication of the Isaac and Mara Benmergui Torah Academy of Bergen County

Parshat Shemini            11 Adar II 5763               March 15, 2003            Vol.12 No.21

Sefirat Haomer During Bein Hashemashot
by Rabbi Chaim Jachter

Introduction
This week we shall discuss an important question relating to Sefirat Haomer - when the earliest time to count the Omer is.  First, though, we must outline a critical Halachich issue – what and when is Bain Hashemashot.

Bein Hashemashot
The Gemara refers to the period between sunset (Shkia) and the appearance of three medium size stars (Tzeit Hakochavim) as Bain Hashemashot.  The Gemara (Shabbat 34b) writes that there is a Safek (doubt) about this period, whether it is day or night.  Thus, the Gemara concludes, Halacha imposes the stringencies of both days upon us.  This is why we begin, for example, Shabbat and Yom Tov at Shkia and end these days only at Tzeit Hakochavim.
Rav Yosef Dov Soloveitchik (Shiurim Lizecher Abba Mori z”l 1:97-104) cites the Ritva (Yoma 47b s.v. Amar Rabi Yochanan) who explains that Chazal did not consider Bain Hashemashot to be Safek day or night because of a lack of knowledge.  Rather, Chazal consider Bain Hashemashot as having aspects of both day and night.  The Rav explains the dual identity of Bain Hashemashot as emerging from the two different standards of night and day that appear in the first chapter of Sefer Breishit.  By the standards of the first day of creation, Bain Hashemashot is considered day.  On the first day of creation, the appearance of light distinguishes between night and day (Breishit 1:5).  On the fourth day of creation, though, the appearance of the sun determines when it is day and when it is night (Breishit 1:14).  Thus, by the standard of the first day of creation, Bain Hashemashot is day because there is still light.  However, by the standard of the fourth day of creation, Bain Hashemashot is defined as night, because the sun no longer appears above the horizon during this time.
There is a debate, though, about the precise contours of Bain Hashemashot.  The primary debate regarding Bain Hashemashot is the unresolved debate that rages between the Vilna Gaon and Rabbeinu Tam.  Tosafot (Shabbat 35a s.v. Trei) note an apparent contradiction between Shabbat 34-35 and Pesachim 94a.  Shabbat 34-35 seems to teach that night begins thirteen and a half minutes after Shkia or the time it takes for an average individual to walk three quarters of a Mil (a Mil is two thousand cubits or three to four thousand feet).  According to most opinions, an average person walks a Mil in eighteen minutes.  Thus, according to Shabbat 34-35, night seems to begin thirteen and a half minutes after Shkia.  However, Pesachim 94a seems to teach that night begins seventy-two minutes after Shkia, or the time it takes an average person to walk four Mil.
Rabbeinu Tam seems to resolve the contradiction by explaining that nightfall or Tzeit HaKochavim occurs seventy-two minutes after the sun sets, in accordance with Pesachim 94a.  Bain Hashemashot, in turn, begins thirteen and a half minutes before night or fifty-eight and a half minutes after sunset.  Thus, according to Rabbeinu Tam, it is still daytime according to the Halacha until fifty-eight and a half minutes after sunset, and Bain Hashemashot is between fifty-eight and a half minutes after sunset until seventy-two minutes after sunset.  Many Rishonim concur with Rabbeinu Tam’s approach including the Ramban (Torat Haadam, Inyan Aveilut Yeshana), the Rashba (commentary to Shabbat 35), the Ritva, (commentary to Shabbat 35), and the Ran (in his commentary to the Rif on Shabbat).  The Shulchan Aruch (Orach Chaim 261:2) rules in accordance with Rabbeinu Tam in the context of Hilchot Shabbat.  Chassidim, as is well known, follow Rabbeinu Tam for stringencies and thus end Shabbat (what appears to us to be) extraordinarily late.  They will even rely on Rabbeinu Tam for leniencies for a matter that involves only rabbinic law such as the time for Tefilla.  This explains the familiar sight of Chassidim davening Mincha long after the sun has set.  
Some resistance to this opinion began with the Shach (Yora Dea 266:11) citing the Teshuvot Maharam Alashkar who believes that the Rif, Rambam, and Rosh disagree with Rabbeinu Tam.  The opposition reaches its crescendo with the Vilna Gaon (Biur Hagra to Orach Chaim 261:2) who marshals many proofs from the Gemara to dispute Rabbeinu Tam.  The Vilna Gaon believes that Shabbat 34-35 is the primary focus of this issue and that night begins thirteen and a half minutes after sunset.  Sephardic Jews and non-Chassidic Ashkenazic Jews follow the ruling of the Vilna Gaon, although some accommodate Rabbeinu Tam regarding the end of Shabbat and Yom Kippur (see Biur Halacha 261:2 s.v. Mitechilat and Shehu).  The Vilna Gaon writes, though, that the time period of thirteen and a half minutes, applies only in Jerusalem on the day of the equinox.  The time must be adjusted according to the time of season and distance from the equator.  Thus, common practice in this country is to wait forty-five to fifty minutes after sunset for the end of Shabbat (see Rav Moshe Feinstein, Teshuvot Igrot Moshe O.C. 4:62 and Rav Mordechai Willig, Am Mordechai pp.11-16).  For a detailed discussion of this issue see the aforementioned section of Rav Willig’s Am Mordechai and the many twentieth century Sefarim that he cites, that discuss this topic at length.
 

Sefirat Haomer- A Torah or Rabbinic Level Obligation?
The question of whether we may count the Omer during Bain Hashemashot depends, largely, on the debate among the Rishonim whether Sefirat Haomer constitutes a Torah level obligation in the absence of a functioning Bait Hamikdash.  The Ran (in the conclusion of his commentary to the Rif to Masechet Pesachim) notes that most Rishonim agree with Tosafot (Menachot 66a s.v. Zecher) that Sefirat Haomer today is only a rabbinic obligation.  Rambam (Hilchot Temidim Umusafim 7:22), however, believes that Sefirat Haomer remains a Torah level obligation even in the tragic absence of the Beit Hamikdash.  The Biur Halacha (489:1 s.v. Lispor) cites a significant number of Rishonim who concur with the Rambam including the Sefer HaChinuch, Raavya, and Ohr Zarua.
Hashem privileged me to hear an explanation of this dispute from Rav Yosef Dov Soloveitchik in the Shiurim he delivered on the sixth chapter of Masechet Menachot at Yeshiva University on November 7, 1983.  The Rav noted that all agree that the offering of the Korban Omer generates the Mitzva of Sefirat Haomer as is explicit in the Torah (Vayikra 23:15 and Devarim 16:9).  Accordingly, Tosafot believe that in the absence of the Korban Omer, there is no Torah level obligation to count the Omer.  The Rambam, however, believes that the very date of the sixteenth of Nissan also generates the obligation to count the Omer.  Thus, even in the absence of the Korban Omer, the Torah level obligation to count the Omer remains in effect.
 

Sefirat Haomer During Bein Hashemashot
Tosafot (ad. loc.) note that since Sefirat Haomer today is only a rabbinic level obligation, we may count Sefira even during Bain Hashemashot.  This is because the time of Bain Hashemashot is Safek night and regarding a rabbinic law, one may resolve a Safek leniently (Safek Dirabannan Likula).  Tosafot add that it is even preferable to count the Omer during Bain Hashemashot because of the desirability of Temimot, that Sefirat Haomer should be whole and complete.  The Gemara (Menachot 66a) says that one should count the Omer at night because the Pasuk (Vayikra 23:15) describes the weeks to be counted as Temimot.  Tosafot understands this Gemara also as teaching that the earlier in the evening we count the Omer the better.  Rav Soloveitchik explained Tosafot as understanding that not only is it a Mitzva to count the days, it is also a Mitzva for the days to be counted.  Thus, the earlier in the evening we count the Omer, the more of the day is counted. 
The Rambam quite obviously would reject Tosafot’s assertion that one may count the Omer during Bain Hashemashot because he believes that Sefira today is a Torah level obligation and one must act stringently in case of doubt regarding a Torah law (Safek Dioraita Lichumra).  Moreover, even Tosafot express objection to the assertion that it is preferable to count the Omer during Bain Hashemashot.  The Ran (ad. loc.) explains that it is counterintuitive to believe that when Sefirat Haomer’s status as a Mitzva was downgraded to a rabbinic level obligation, a stringency was introduced that we should strive to count the Omer earlier than we used to do when Sefira was a Torah level obligation.  Furthermore, the Ran notes that even though Safek Dirabanan Likula, one should not deliberately introduce a doubt in one’s performance of Mitzvot.  Thus, he concludes that Bidieved (post facto) if one had already counted the Omer during Bain Hashemashot he need not repeat the counting, but Lichatchila (initially) one should not count the Omer during Bain Hashemashot.
The Shulchan Aruch (O.C. 489:2) notes that those who are particular in their performance of Mitzvot wait until Tzeit HaKochavim (nightfall) and he concludes, “it is proper to do so.”  The Biur Halacha (ad. loc.) and Aruch Hashulchan (O.C. 489:7) note that it is common practice to follow the stricter approach and wait until Tzeit HaKochavim to count the Omer.  Rav Ovadia Yosef (Teshuvot Yechave Daat 1:23), though, records the custom in Jerusalem is to count the Sefira during Bain Hashemashot.  Rav Aharon Adler of Ramot reports that Rav Soloveitchik told him that one may rely on Tosafot and count the Omer during Bain Hashemashot, especially in light of the opinion in Tosafot that this is the preferable way to count the Omer.  A benefit of counting the Omer after a Minyan that davens Maariv during Bain Hashemashot (a practice recorded and endorsed by the Rama O.C. 233:1) is that it eliminates the concern that one may forget to count the Omer after Tzeit HaKochavim when he is at home.  Perhaps this is what motivated the Rav’s ruling (also see Shulchan Aruch O.C. 489:3).  Rav Ovadia Yosef (ad. loc.) adopts a similar approach to the Rav.  He rules that if the Tzibbur is not willing to remain in Shul until Tzeit HaKochavim, they may count the Sefira during Bain Hashemashot since people might forget to count after Tzeit when they are in their homes. 
The Aruch Hashulchan (ad. loc.) adopts a compromise view, stating that on Friday evenings common practice in his locale was to count the Omer during Bain Hashemashot. This is because the Aruch Hashulchan subscribes to the Taz’s  (O.C. 494 and 668) view that when one accepts Shabbat he has transformed the time into the next day (for a full analysis and discussion of the issue of the debate regarding the potential transformative powers of Tosefet Shabbat, see Rav Betzalel Zolti’s Mishnat Yaavetz O.C. chapter 29).  Thus, Bain Hashemashot on Shabbat is the equivalent of night for those who have already recited Maariv, according to this view.  We should note that both Rav Moshe Feinstein (Teshuvot Igrot Moshe O.C. 99:3) and Rav Ovadia (ad. loc.) rule that one may not count Sefira before Bain Hashemashot even though Plag Mincha has passed.
 

Conclusion
In our next issue, we Bli Neder and Im Yirtzeh Hashem, shall complete this discussion and review the question of when is the last opportunity to count the Omer.
 

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