(2003/5763)

I am currently preparing a small book (in Hebrew) to be entitled Bikkurei Sukkah.  It will include the Chiddushim that emerged from the Y9 Gemara Shiur at Torah Academy in the year 5763.  Much of the book will include the novel insights of the Talmidim of that Shiur.  I will present some of the material that is relevant Halacha L’maaseh in a few issues of the Kol Torah this year. 

A Very Delicate Question

We discussed a particularly delicate Halachic question that was posed to me many years ago by a Rebbe who taught at a Yeshiva outside of the New York area.  A Talmid asked him the following question:  The student’s grandfather every year visits the family for Sukkot and the grandfather purchases the Four Minim for each member of the family.  The problem was that although the grandfather was a very honorable and Torah- observant individual, he nevertheless was not learned and was not familiar with the intricacies concerning the Halachot of the Four Minim.  The question was if the grandchildren were obligated to check the Four Minim for disqualifying features that the grandfather did not look for.  The problem was that if the grandchildren would be discovered inspecting the Four Minim, a huge fight would erupt.  Certainly, if the Four Minim were found to be invalid and replaced with another set, familial harmony would be severely disrupted.    

The question for the granddaughters was not particularly severe as women are not obligated in the Mitzvah of Lulav as it is a Mitzvat Asei Shehazman Grama, a time bound positive Mitzvah.  However, since the family was Ashkenazic the question is whether the granddaughters were permitted to recite a Bracha on the Lulav. (Ashkenazim follow the rulings of the Tosafot and Rama that a woman may recite a Bracha on a Mitzvat Asei She’ha’zman Grama and many Sephardim follow the rulings of the Rambam and Rav Yosef Karo that women should not recite a Bracha on a Mitzvat Asei She’ha’zman Grama.) 

A Fifth of One’s Assets to Fulfill a Positive Mitzvah

A possible avenue of leniency to dispense with the requirement to inspect the Four Minim in this case, might be based on the ruling of the Rama (Orach Chaim 656) that one is not required to spend more than a fifth of one’s assets to fulfill a positive Mitzvah.  A number of examples of how Poskim apply this rule will help clarify how a Rav can implement this ruling in practice. 

The first example was a very difficult question that often confronts observant doctors – does Halacha require a doctor to violate a Do Not Resuscitate (DNR) order that contradicts Halacha.  For example, a patient signed a living will that calls for withholding medicine that Halacha requires to be administered.  On one hand, the Shulchan Aruch (Yoreh Deah 336:1) states that a physician who withholds medical care is the equivalent of a murderer.  On the other hand, a doctor who violates a DNR order risks severe penalties such as the revocation of his license to practice medicine.  Dr. Abraham S. Abraham (Nishmat Avraham 4:96-98) cites the rulings of Rav Shlomo Zalman Auerbach, Rav Eliezer Waldenburg, and Rav Shlomo Yosef Eliashiv permitting doctors to honor a DNR order in certain circumstances.  One basis for this ruling is that a doctor is not obligated to risk more than a fifth of his money to fulfill the Mitzvah of saving others (Lo Taamod Al Dam Reiacha).  We must strongly emphasize, though, that this is a question of great complexity and that only a Rav of eminent stature may adjudicate such a question.

Another example is a ruling by Rav Moshe Feinstein (Teshuvot Igrot Moshe O.C.1:172) about an individual who was hospitalized because of mental illness and had subsequently been stabilized.  His doctors felt that he needed to remain in the hospital for a few more weeks, which included Rosh Hashana, in order to avoid a relapse.  The question was whether the patient was required to leave the hospital to hear Tekiat Shofar, which was unavailable in the hospital.  Rav Moshe responded that he was not required to risk his mental health to leave the hospital in order to hear Tekiat Shofar.  Rav Moshe reasons that since one would expend more than one fifth of his financial resources in order to regain his mental health, he need not risk his mental health in order to fulfill a positive Mitzvah.  We should note, though, that it is appropriate for every community to ensure that anyone who is unable to attend shul on Rosh Hashanah has the opportunity to hear Tekiat Shofar. 

Similarly, Rav Hershel Schachter ruled in 1992 regarding someone who suffered from a particularly severe form of irritable bowel syndrome, which makes consuming any grain product fraught with acute stomach pain, that he was excused from fulfilling the Mitzva of Matza.  However, a few years later I asked Rav Schachter about a woman who suffered from a milder form of this problem, and Rav Schachter ruled that she was not excused from the Mitzva of Matza even though she would experience moderate pain after eating Matza.  He did, however, permit her to eat a smaller Shiur of Matza in accordance with the ruling of the Mishna Brura 486:1.  We should note that oat Matza is easier to consume for many individuals who cannot consume Matza made from wheat.  In addition we should note that Halacha requires one to drink the Arba Kosot at the Seder even it is painful to do so (Shulchan Aruch O.C. 472:10).  One who is faced with this problem (such as a diabetic) should consult with a Rav on how to negotiate this challenge.  The Halacha regarding the Four Minim, however, seems to constitute the exception that proves the rule that Halacha does not require enduring enormous suffering in order to fulfill a positive Mitzvah.  

A final example was a ruling cited by Rav David Cohen of Flatbush, in a Shiur he delivered at a conference of Young Israel Rabbis.  He quoted a prominent Rav who ruled in the following case.  A prominent psychologist recommended that a young man who had a severe stutter refrain from talking for two weeks as part of his course of therapy.  The question was whether it was permissible for the young man to follow the psychologist’s suggestion since the young man would not recite Kriat Shema, which is a Biblical obligation according to almost all Rishonim.  The prominent Rav ruled that it was permissible to follow the psychologist’s suggestion, as the restoration of proper speech is as valuable to a person as a fifth of his financial assets.

Returning to our situation regarding the Four Minim, I thought that perhaps the grandchildren were not required to inspect the Four Minim that their grandfather had purchased for them, because the maintenance of family harmony and not humiliating the grandfather (God forbid might be worth more than one fifth of one’s assets.  In the year that this question was posed, the first day of Sukkot fell on Shabbat (as it will this year) and there was perhaps more reason to be lenient as it is only a rabbinic obligation to take the four Minim on the remaining days of Sukkot (Sukkah 41a).  However, it seemed that the grandchildren should not recite the blessing on the Four Minim as there was doubt whether the Four Minim their grandfather had purchased was Kosher.  The general rule is that one should not recite a Beracha (see Rambam Hilchot Berachot 11:16)

Rav David Cohen’s Approach            

I posed this question and my suggested approach to Rav David Cohen.  He was not eager to take the route of an excusing one from a Mitzva because the “cost” is too high.  Rather, he suggested that there was a simpler approach to resolve the problem. He felt that in such a case one might rely on the fact that the Rov (majority) of the Arba Minim that are sold commercially on our area are fundamentally Kosher (although not necessarily Mehudar).  This seems especially true today that Hadasim today are very often pre inspected by Rabbanim to ensure that they are Meshulashim (that a majority of each Hadas has its three leaves emerging from the same basic area). 

According to this approach, the grandchildren shooudld even be permitted to recite a Bracha on the Arba Minim, as a Rov constitutes a sufficient basis to recite a bracha. The proof to this (as pointed out to me by Rav J. David Bleich in a personal conversation regarding reciting a Bracha on Tevilat Keilim) is the fact that Shochiet relying on the Rov that most animals are not fundamentally Treifa.  Rav Hershel Schachter told me that he thinks this proof is convincing and correct that one may recite a Beracha relying on a Rov.  The Aruch Hashulchan (O.C. 648: 42) also believes that a bracha may be recited based on a Rov.

Challenges and Defenses of Rav David Cohen’s Rulings

One of the students at TABC, however, raised the following problem with this ruling in our Shiur.  The Ran (Pesachim 1b in the pages of the Rif) articulates the rule that one should not rely on a chazakah when one is possible to verify the information.  The Ran makes this comment on the Gemara (Pesachim 4) that states that if one rents a home from an observant Jew on Erev Pesach he may assume that the owner performed Bedikat Chametz, as the house is B’chezkat Baduk (presumed to be checked for Chametz). However, the Ran infers from the Gemara, that if the owner was present one should inquire of the owner if he performed Bedikat Chametz and not merely rely upon the Chazakah (presumption that it was checked).  Similarly, it would seem that the grandchildren did not have a right to rely upon the Rov since it is possible for them to inspect the Arba Minim their grandfather purchased for them.

One may respond that in our case it is a situation where it is not possible to inspect the Four minim, as doing so would severely disrupt Shalom Bayit.  Moreover, the Ran states that one may not rely on Chazakah when it is possible to verify information.  However, one may rely on Rov even when it is possible to verify the information.  A prime example is that we do not inspect an animal for all of the eighteen types of Treifot after Shechita.  Instead we rely on the Rov that most animals are fundamentally Kosher (see Rashi Chullin 12a s.v. Pesach).  The reason to distinguish between a Rov and a Chazakah is that Rov is a more powerful tool than Chazakah, as the Gemara states in Kiddushin 80a that if a Rov and a Chazah are in conflict that one follows the Rov (Ruba V’chazakah Ruba Adif).  A popular explanation from Rav Shimon Shkop (one of the great East European Roshei Yeshivot of the early twentieth century) is often cited to explain this assertion of the Gemara.  Rav Shimon explains that Chazakah is merely a “Machria” (a Halachic tool to resolve a situation of doubt) whereas Rov is a “Mevareir” (it informs us of what the facts of the case most likely are). 

One may challenge this approach, though, since after Shechita we do inspect the lungs of the animal for holes that render the animal a Treifa.  The aforementioned Rashi explains that in case of a Mi’ut Hamatzui (a significant minority) we L’chatchila (initially) do not rely upon the Rov.  Ramban (Milchamot Hashem Chullin 3b in the pages of the Rif) explains that there is a rabbinic level obligation to inspect for Treifot in case of a Mi’ut Hamatzui of disqualifications.  Thus, since there is a significant minority of animals whose lungs are perforated, we inspect the lungs after Shechita.  Similarly, our practice is to inspect the Four Minim we purchase for use on Sukkot since there is a Mi’ut Hamatzui of the Four minim that are not Kosher.

A response to this challenge might be that we inspect the Four Minim because we seek to find a Mehudar (choice) set and not because there is a Miut HaMatzui of Four minim that are fundamentally invalid.  The grandchildren certainly should risk foregoing a choice Four minim in order to maintain familial harmony.  Moreover, the aforementioned Rashi states that in case the lungs of an animal are unavailable for inspection, that B’dieved (after the fact) one may rely on the Rov that most animals are fundamentally Kosher.  Thus, in our case one may argue that Sha’at HaD’chak K’b’dieved Dami, that a case of pressing need is the equivalent of B’dieved, and thus there is no rabbinic obligation to inspect the Four Minim.  In addition, the Gemara (Brachot 20) states that rabbinic obligations may be waived in case of Kavod Ha’bri’ot (human dignity) and perhaps one may waive the rabbinic obligation to check the Four Minim in order to preserve the grandfather’s dignity and Shalom Bayit. 

Conclusion

Today it is particularly easy to become proficient with the intricacies of the Halachot concerning the Four Minim.  There are fine Sefarim available that clearly present, with the aid of full color pictures, these important Halachot.  It is appropriate to devote some time before Sukkot to study these Halachot in order to be able to choose a fine quality set of Four minim.  However, in case of extraordinary need, there might be a basis to set aside our practice to inspect the Four Minim.  A competent Rav should be consulted for a ruling should one be faced with such a situation.