Friday, May 30, 2014

Tracing the history of eating milchigs on Shavuos

Tracing the history of eating milchigs on Shavuos
by Eliezer Brodt

In this post I would like to deal with tracing the early sources for the minhag of eating milchigs on Shavuos. A version of this article was printed last year in the Ami Magazine (# 119).  This post contains a few corrections and additions to that version. A much more expanded version of this article will appear in Hebrew shortly (IY"H).

Eating the vast array of customary dairy delicacies on Shavuos including, of course, cheesecake, is a minhag that very few people find very difficult. But what is the source of this minhag?

This minhag goes back at least to the times of the Rishonim, and varied explanations for it also do. [1]

That the minhag of milchigs on Shavuos was observed widely in recent history is very clear. For example, in an informative nineteenth-century Lithuanian memoir, the author describes the milk-based Yom Tov atmosphere:

“And at home there was again roasting and baking namely, many butter cakes! On this Holiday you especially ate all milk and butter dishes. The traditional cheese blintzes with sour cream, a kind of flinsed, were essential… On the second day of Shavuos… a happy mood prevailed; we drank fine aromatic coffee and ate butter cakes and blintshikes.”[2]

In Yeshivas Volozhin, after staying up the whole night, the whole yeshiva would take part in a milchig kiddush at the Netziv’s house.[3] We find the same thing in the Lomza Yeshiva; they had a kiddush after davening with cheesecakes and the like.[4]

The question is, where did this minhag of eating milchigs on Shavuos come from? The Rambam, Tur, and Shulchan Aruch do not make any mention of it.

In this article, I will trace some of the earliest known sources that we have for this minhag and discuss some of the reasons that are given. This is not an attempt to cover all aspects of this rich minhag, I hope to return this in the future.[5]

One of the earliest mentions of this minhag can be found in a Pesach drasha from the Rokeach (1165-1240), which was printed from a manuscript for the first time just a few years ago.[6]

Another one of the earliest sources is found in the very interesting work Malmed Hatalmidim from Rav Yaakov Antoli. Rav Antoli was born around 1194 in Provence, in southern France. He married the daughter of Rav Shmuel Ibn Tibon, the famous translator of the Moreh Nevuchim into Hebrew. The Malmed Hatalmidim was only first printed in 1866, with the haskamos of many gedolim, but the manuscript form had been used before that by many Rishonim, most notably the Avudraham.

Rav Antoli writes that the custom is to eat milk and honey on Shavuos. He explains that this is because Torah is compared to milk and honey. Since milk is a very important food, so too, the mitzvos of the Torah are food for the soul, he says.[7]

Another early source for eating milchigs is found in the work Even Bochen from Rav Kalonymos ben Kalonymos (1286-1328)[8], where he describes milchig breads made with honey and formed into the shape of a ladder. (We’ll return to the ladder-shaped breads shortly).

Yet another early source can be found in the works of Rav Aharon Hacohen Miluneil (died around 1330) in his early work Kol Bo and in his later work Orchos Chaim. He writes, like the Malmed Hatalmidim, that on Shavuos people have the custom to eat milk and honey because Torah is compared to milk and honey. Women also bake challos with four heads, he says, as a zecher to the lechem hapanim. He says that others dip matzahs left over from Pesach into the spice known as zefrin since it causes happiness.[9]

Rav Avigdor Hatzorfoti (died 1275) brings a remez (hint) from the Torah for the minhag. The passuk about Shavuos says, “Ubyom habikurim bihakriyvchem mincha chadasha lashem beshivuaschem.” The beginning letters of the last three words spell out chalav, milk.[10]

This minhag is also found in the following early sefarim: the minhagim of the Maharam Merutenberg (written by a talmid of his)[11], Terumas Hadeshen[12], Maharil[13], Rav Isaac Tirina (born around 1380)[14],Meshivas Nefesh from Rabbi Yochanon Luria (1382)[15], Rama[16], Seder Hayom (printed in 1599)[17], Yosef Ometz (1570-1637)[18], and the Shelah Hakodesh (1570-1635).[19]

Aside from the reasons already mentioned, many additional reasons for this minhag have been given over the years. Recently, close to 150 reasons were collected by Rabbi Moshe Dinin in a small work called Kuntres Matamei Moshe.

Here are a few reasons and some interesting points related to them.

Rav Elyakyim Horowitz says that we eat milchigs because Dovid Hamelech died on Shavuos. The halacha is that when a king dies, all of the Jews have the status of an onen and are not permitted to eat meat.[20] This same reason can also be found in the work of Rabbi Shimon Falk.[21]

Rav Avrohom Hershovitz brings the Mishna at the end of Avos, which says that one of the 48 ways the Torah is acquired is through not indulging oneself. Since meat is considered an indulgence, we eat milk products during the chag of Matan Torah as a reminder that this is the way to acquire Torah.[22]

Rav Mordechai Leib Zaks points out that in the parsha of Bikurim it says that Hashem gave us the land of milk and honey. Therefore he suggests that the custom is to eat milchigs on the Yom Habikkurim to give thanks to Hashem for giving us the land of milk and honey and as a reminder of the mitzvah of bikkurim, which only included the fruits of Eretz Yisrael, the land of milk and honey.[23]

Rabbi Yeshuyah Singer in Zichron B’sefer (printed in 1900) writes an interesting reason which he had heard. The Torah was given on Shabbos. The meat they had prepared before learning the halachos of shechita was assur to eat. It is not permitted to shecht on Shabbos. Therefore Bnei Yisrael had to eat milchigs, as they could not eat the food that they had prepared beforehand.[24]

The Mishna Berurah mentions a similar reason that he heard in the name of “gadol echad.” Immediately after Bnei Yisrael accepted the Torah, they were unable to eat anything but milchigs. The reason for that is because the preparation of kosher meat is very involved. A kosher knife and kosher utensils are necessary. Since this takes a long time, they just cooked milchigs.[25] Who is the “gadol echad” mentioned here? Rabbi Nachum Greenwald located this idea in the work Toldos Yitzchak, first printed in 1868. This idea is mentioned in the name of Rabbi Levi Yitzchak from Berditchev. It is interesting that the Chofetz Chaim did not say the name of the person he heard this idea from.[26] A similar idea can be found in the work Geulas Yisroel first printed in 1821.

Rabbi Kapach says that the Jews in Yemen expressed wonder at those who ate just milchigs on Shavuos. They did not like the reason given (as we mentioned before) that the meat slaughtered prior to Matan Torah would be neveilah afterwards, because they argued that only the Erev Rav were unable to shecht before Matan Torah. The rest of the Jews, they claimed, were shechting before Matan Torah, just as we know that the Gemara says that Avraham Avinu kept all the mitzvos of the Torah before they were given.[27] However this statement is not so simple, because even if they were shechting and doing mitzvos before it is heavily debated what that would be considered, since their status as Jews may have changed during Matan Torah. According to many it would follow that after Matan Torah they would need to kasher the utensils and shecht new animals.[28]

Rav Yissachar Teichtal deals with a related issue. He asks that since the Torah was given on Shabbos and they couldn’t shecht and their prior shechita was not kosher, how did they fulfill the obligation of eating meat on Shabbos?[29] Rav Teichtal first mentions the answer of the Zichron Basefer quoted above, which is that they didn’t eat meat that Shabbos. However, Rav Teichtel disagrees. He has an interesting answer to explain how they did indeed have meat on this Shabbos. Basing himself on various sources, he says that they had meat created through the Sefer Yetzirah. The Gemara relates that there were those who were able to create an animal via the Sefer Yetzirah; Rav Teichtal says that that was done here.[30]

The Toldos Yitzchak, quoted above, from Reb Levi Yitzchak Berditichever, gives another answer. There is a concept in halacha called Hoiel v’ishtrei ishtrei, which means that if something was permitted at one time, it remains muttar. It follows that they were permitted to eat anything they had prepared beforehand and did not have to throw out their dishes. Then he says that even though it was permitted, the Yidden were stringent and didn’t eat the meat. Since they were accepting the Torah that day, they wanted to be machmir.

A similar idea is found when Moshe Rabbeinu, as a baby, didn’t nurse from a non-Jew even though it was permissible. It appears that this idea is based on a concept found in numerous sources, called chinuch shanei. It means that the first time we do something, we do it in the best way possible, even if other ways are permitted. Moshe Rabbeinu could have been nursed from a non-Jew, but since he was the one who was going to get the Torah, he was kept from doing it. So too, here, the Yidden were machmir by not eating what was entirely permissible.[31]

Speaking of Moshe Rabbeinu, an original reason for this minhag is given by Rabbi Yitzchak Weiss, who says that Moshe Rabbeinu was found by the daughter of Pharaoh on Shavuos. Since they tried to give him milk from a non-Jew and he refused, we eat dairy to remind us of that.[32]

Cheesecake on the clock

Rav Dunner, in a recent article on the topic, lists many gedolim who ate the milchig seudah at night, including the Chazon Ish, Rav Aharon Kotler, Rav Yechezkel Abramsky, and others.[33] It is questionable whether or not there is an obligation to eat meat at night on Yom Tov.[34] In other sources, we see the opposite. There were people who specifically ate milchigs during the day—for example, the Volozhin and Lomza yeshivas, which I mentioned earlier, where there was a kiddush with cheesecake after davening.[35] This is also what the Darchei Teshuvah suggests one should do to avoid many different halachic issues.[36]

There is much discussion in the poskim whether it is permitted to eat milchigs first during the day, and then wait and eat meat. There’s also discussion about how long to wait. Some wait an hour before eating meat. Other poskim deal with the question of whether there is an obligation to bentch after the milchig kiddush.[37] For example, the Knesses Hagedolah (1603-1673) writes that he ate milchigs and honey, then he benched, and after he waited an hour, he ate fleishigs.[38]

However it's pretty clear that the Magen Avrohom argues when he writes:

ועבי"ד סי' פ"ט דא"צ להפסיק בב"ה [בברכת המזון] אם אינו אוכל גבינה קשה (סי' תצד:ו).[39]

What’s interesting is that certain mekubalim did not eat milk the same day they ate meat products. Rabbi Eliyahu de Vidas, author of the Reishes Chochma (d. 1579), in his work Tosos Chaim writes that one should wait 24 hours(!) after eating meat before eating milk. According to this, it wouldn’t be possible to eat milk after meat on Shavuos![40]

The Yosef Ometz quotes the Shelah, who says that he would wait 24 hours after meat to eat milk.[41] But later on (in siman 854), he says that people were lenient about this on Shavuos.

Interestingly enough, the Tzror Hamor even says that one should not eat meat within 24 hours of eating milk, and vice versa.

לפי קבלת קדמונינו בא לאסור בשר בחלב. ואמר לא תבשל. ולא אמר לא תאכל. לרמוז לנו כפי חכמי האמת כי אסור לאכול בשר ואחר כך חלב. וכן אסור לאכול חלב ואחר כך בשר. ואעפ"י שנתנו חכמים שיעורים בזה. כבר כתב רשב"י ז"ל כי כמו שאסור חלב אחר בשר. כך אסור לאכול בשר אחר חלב. ודינם שוה לענין השיעור שהוא עד שיתעכל המזון שבמיעיו. שהם כמו שש שעות שהוא זמן מסעודה לסעודה. כי הבישול האמור כאן על בישול האצטומכא הוא. בענין שלא יתבשלו הבשר והחלב באצטומכא בזמן אחד. ולפי שיש אצטומכא מאחרת העיכול. ליראי ה' ולחושבי שמו אין לאכול גבינה ובשר ביום אחד. וכל שכן בשר וגבינה. וכן נוהגים המדקדקים במצות ואנשי מעשה. והטעם בזה לפי שאין ראוי לערב הכוחות אלו באלו. כח הדין בכח הרחמים. וכח הרחמים בכח הדין. כי הבשר הוא מדת הדין בסוד קץ כל בשר. כי מנפש ועד בשר יכלה הצר. והחלב הוא סוד הרחמים הגמורים המלבינים עונותיהם של ישראל. כאומרו כשלג ילבינו. והחטא הוא אדום בסוד הלעיטני נא מן האדום האדום הזה. ולכן יש להפרידם זה מזה כל אחד על כנו. ואת כל עורב למינו (צרור המור, משפטים, כג:יט).

According to this there would be appear to be no way to eat both milk and meat on Shavuos.

The Toras Chaim is also very concerned with this issue of eating meat after milk; he says not to eat milchigs on Shavuos.[42]

However, other rabbanim were to the other extreme. The Rokeach writes that his great uncle used to eat cheese, then wash his mouth out and immediately eat meat.[43] There is also a talmid of the Terumas Hadeshen who writes in his work Leket Yosher that his rebbi did the same[44].

From honey to milk

It would appear that this minhag of eating milchigs ties in with another minhag of Shavuos and perhaps is derived from there.[45] When the talmid of the Maharam Merutenberg brings among the minhagim of the Maharam the minhag to eat milchigs on Shavuos, he brings it right after he brings another minhag: “Special cakes with pesukim on them are made for children as they begin to learn on Shavuos these are made to help them have an open heart [for learning].”

There are numerous sources in Rishonim (such as Rokeach and Machzor Vitri) that on Shavuos when a boy begins to learn an elaborate ceremony is performed in which they eat from specially prepared cakes and dip their fingers in honey while saying certain pesukim.[46] This is done to help the boy’s mind open up and is a special segulah to help him remember what he learns. (Some sources do not mention that this was done on Shavuos; most do.)

This ceremony was done on Shavuos because it is the day we received the Torah. Interestingly, we find sources for a few hundred years in the Rishonim that this minhag continued, at least in German circles. But it appears to have eventually been forgotten. The Shach cites the Rokeach as having mentioned the minhag but says that now it is not done.[47] Rabbi Dovid Ginsburg writes that he only found out about this minhag later on in life and had he known about it earlier he would have definitely done it for his children.[48] Rav Yaakov Emden writes that the reason that in earlier times the children excelled in their Jewish education as opposed to in his times was due to that they stopped doing this ceremony quoted in the Rishonim![48] Recently this minhag has been revived as part of the upsherin ceremony.

Be that as it may, it is possible that this minhag of eating honey and sweets on Shavuos actually led to the minhag of eating of milchigs, because honey has always been associated with milchigs.

As mentioned earlier, some made special milchig breads in the shapes of ladders. In the work Even Bochen from Rav Kalonymos ben Kalonymos we find an explanation, that the gematria of sulam (ladder) is Sinai. The Yosef Ometz and others bring different reasons connecting a ladder and Shavuos. [49]

Professor Daniel Sperber suggested that the reason why the bread is shaped in the form of a ladder is that it ties in to the ceremonies for children who begin learning. To get the children to ask what is going on we make the breads in an interesting shape, similar to our methods of getting them to ask at the Pesach seder.[50]



[1] There are many collections of material on this issue see for example Rabbi Pinchas Schwartz, Minchas Chadasah, pp. 38-44; Rabbi S. Deblitski, Kuntres Hamoyadim, pp. 37-40; Kovet Eitz Chaim (Bobov) 6 (2008) pp. 239-242; an excellent collection of material in Pardes Eliezer, pp. 227-316; Rabbi Freund, Moadyim Lisimcha 6, pp. 490-505 ; Rabbi Yitzchack Tessler, Pininei Minhag, pp. 292-319; Rabbi Oberlander, Kovetz Or Yisroel, 32:104-120 and later updated in his Minhag Avosenu Beyadneu. See also Yehudah Avidah in his work on Yiddish foods, Yiddishe Macholim, pp. 43-44; M. Kosover, Yiddishe Macholim, p. 75, 77, 98.
[2] Pauline Wengeroff, Memoirs of a Grandmother, 2010, p.150.
[3] Reshumot 1, p. 340.
[4] See Pirkei Zichronos, (2004) p. 359
[5] I hope to return to many other aspects of the minhag in the near future.
[6] Drasha Lepesach, ed. Simcha Emanuel (2006), p. 39, 110. See the important comment on this from my friend M. M. Honig in Pininei Minhag, p. 292.
[7] Malmed Hatalmdim, p. 121b. I hope to return to this work in a future article; for now see my article in Yeshurun, 24 (2011), p. 457.
[8] Even Bochen, p. 34. Mahratz Chiyos in his Kol Sifrei (p. 236) quotes this as an early source for eating milchigs. Both Matai Moshe (siman 692) and Mekor Chaim quote this work when talking about eating milchigs on Shavuos. On Rav Kalonymus ben Kalonymus much has been written already see: Y. Zinberg, Toldos Safrus Yisroel, vol. 1, pp. 411-427; Uberto Cassuto in the intro of the facsimile edition of Mesechtas Purim printed by A. Haberman in 1978; A. Haberman, Toldos Hapiyut Ve-hashira, vol. 2, pp. 142-149; A. Haberman Iyunim Bshira Ubpyuit, pg 162-179; C. Shirman, Toldos Ha-shira Haivirit Be-sefard, pp. 514-541.
[9 Orchos Chaim, p. 78a, Kol Bo, siman 52. Most are not aware that this work was authored by the same person. There were actually those that thought the Kol Bo was authored by a woman; see my Bein Kesseh L’essur (2010) p. 143.
[10] See Rav Avigdor Hatzorfoti, p. 478 See his Pirush Rav Avigdor Cohen Tzedek printed in the Toras Chaim edition of Megillas Rus, 2011, p. 53. On Rav Avigdor Hatzorfoti see Simcha Emanuel, Shivrei Luchos, pp. 173-181; E. Kanarfogel, Peering through the Lattices, pp. 107-109.
[11] Minhaghim of Maharham, p. 30.
[12] Leket Yosher, p. 103
[13] Minhaghim p. 85
[14] Sefer Minhaghim, Reb Isaac Tirina (2000) p. 67-68. To be more exact this minhag is in the section which is called Hagahos haminhagim. It is unclear exactly who the author is of that section but it assumed to have been written rather early on. On all of this, see S. Spitzer in his introduction to this edition pp. 17-18.
[15] Meshivas Nefesh, p. 185. On the dating of this work see Rabbi Yakov Stahl, Deutsche 84, (2010) p. 6.
[16] See Igros Moshe OC 1:160. On this topic see this excellent article by my friend Rabbi Yehudah Spitz here.
[17] Seder Hayom Shavuos p.78
[18] Siman 854
[19] Shelah, Mesechtas Shavuos, p. 30a.
[20] Zichron Yerushlayim, p. 153. In Reshumot 1, p. 350 we find that some made a special seudah because of this and finished Sefer Tehillim.
[21] Shut Shem Mishomon, OC, 2:4, p.15.
[22] R. Avraham Eliezer Hershkowitz, Otzar Kol Minhaghei Yeshrun (St. Louis, 1918),p. 201
[23]Zemanim, (1951) p. 53 See also his Mili Demordechai, p. 125. For another connection between bikkurim and eating milchigs see Rabbi Shlomo Schick, Seder Minhaghim 1 (1880)pp. 83b-84a.
[24] Zichron Besefer, p. 122. See Emes Leyakov (Shulchan Aruch) p. 215 where Rav Yaakov suggests this reason himself and adds some points.
[25] Mishna Berurah 494:12. See also Rav Tzvi Farber, Sefer Moadyim, p. 26 (and see there for some other reasons). See also Rabbi Aron Misnik, Minchas Ahron, pp. 102-106; Pardes Eliezer, pp. 279-282.
[26] The Chofetz Chaim did not have a problem quoting chassidic sources; he quotes the Shulchan Aruch Harav numerous times. On the Chofetz Chaim and chassidus see what I wrote in the article “Censorship in the Sefer Chofetz Chaim,” here.
[27] Halichos Teiman, p. 31. See also Keser Shem Tov, 4 p. 16 who has a similar issue.
[28] The status of the Yidden before Matan Torah and the mitzvos performed then has been discussed in numerous works I hope to return to this topic at a later date. See also Rabbi Oberlander (above, note 1) p. 632- 633.
[29] Shut Mishnat Sachir, siman 136.
[30] Much has been written on how one creates something based on the Sefer Yetzirah and if one can use what has been created through such a method for a mitzvah or the like. I hope to return to this topic at a future date.
[31] A subject I hope to return to in the future.
[32] Elef Kesav, 1, p. 64.
[33] Kovet Eitz Chaim (Bobov) 6 (2008) p. 240
[34] See Eitz Chaim Ibid. See Darchei Tesuvah, 89:19.
[35] See Pirkei Zicronos, (2004) p. 359.
[36] Darchei Tesuvah, 89:19.
[37] See Darchei Tesuvah, 89:14; Dershot Mishnat Sachir, 2, pp. 347-348.
[38] Shiurei Kness hagedolah, 494. See Shut Sich Yitzchack, 234. On this topic see this excellent article by my friend Rabbi Yehudah Spitz here.
[39] I will deal with this Magen Avrhom at great length in the near future B"n.
[40] See Tosas Chaim, 2008 p. 79. In the back of this edition there is a lengthy Peirush Ir Hachaim, pp. 245- 249 and for in-depth discussion of this topic see the Pardes Eliezer pp. 233- 238. I will deal with this at greater length in the near future B"n.
[41] See Yosef Ometz, siman 137.
[42] Toras Chaim, Chullin 83a. However it is worth pointing out that the Toras Chaim in Bava Metzia 86b, says that the reason for eating milchigs on Shavuos is to show the malachim that we are careful about basar b’cholov and that when we eat milk we are careful to do everything halacha says to do before we eat meat.
[43] See Drasha of the Rokeach, p. 39
[44] Leket Yosher, p. 103
[45] This idea was suggested by my friend M.M. Honig. Rabbi Oberlander (above, note 1) also suggests this point. D. Sperber in his Minhagei Yisroel 3, p. 139 also connects the two.
[46] See my article on this in Yerushacheinu, 5 (2011) pp. 337-360 especially pp. 344-347.
[47] Shach, 245:8.
[48] See my article in Yerushacheinu (ibid), p. 347 note 65.
[49] Migdol Oz, p. 32.
[50] Others have different shapes and reasons; see Rav Yehoshua Falk, Choshevi Machsvos p. 152. See also M. Gidman , Hatorah Vehachaim 3, 108; H. Pollack, Jewish Folkways in Germanic Lands (1648-1806), p. 102, 277
[51] Minhagei Yisroel 3, p. 139.

Tuesday, May 20, 2014

Fixing a Typesetting Error in Order to Understand The View of the Mishnah Berurah on Women Wearing Tefillin

Fixing a Typesetting Error in Order to Understand
The View of the Mishnah Berurah on Women Wearing Tefillin
by Michael J. Broyde
mbroyde@emory.edu

Please note that this piece isn't meant to be construed one way or another as the view of the Seforim Blog.

While there has been considerable recent discussion regarding women wearing tefillin, I will not review here the general topic but rather focus specifically only the view of the Mishnah Berurah.  I believe the view of the Mishnah Berurah has been widely misunderstood due to two identical typesetting errors in the text, one in the Mishnah Berurah itself and one in the Biur Halacha.  It is not my intent to address the normative halacha in this article.

Background Sources

Rabbi Karo (OC 38:3) states simply:
נשים ועבדים פטורים מתפילין, מפני שהוא מצות עשה שהזמן גרמא.
Women and slaves are exempt from the mitzvah of tefillin since it is a positive time bound commandment.

Rema adds to his exemption, noting:
 הגה: ואם הנשים רוצין להחמיר על עצמן, מוחין בידם.
If women wish to be strict for themselves, we protest.

is adopting the view of Tosafot and the Pesikta Rabati that we ought to protest such conduct, essentially prohibiting it.

But this blanket statement of the Rema does not sit well with some commentators.  The Olat Tamid[1] (38:4) writes:

ואם הנשים רוצין וכו׳: הטעם כתב בכלבו משום שאינו יודעת לשמור את עצמן בנקיות עכ"ל ואני תמה אם כן למאי הצריכו בגמרא פרק מי שמיתו לפרש מפני שהוא מצות עשה שהזמן גרמא הנשים פוטרות מן התפילין ת"ל דאפילו אס רוצים להחמיר אסורין להניח תפילין, שהרי אינן ידעת לשמרם בטהרה! אלא ודאי דליתא להאי טעמא לפי סוגיות הגמרא וכן אמרינן בר"פ המוצא תפילין דמיכל בת כושי היתה מנחת תפילין ולא מיחו בה חכמים אע"ג דבפסיקתא א' להיפך דמיחו בה חכמים מ"מ אנן אגמרא דידן סמכינן. מיהו יש  לדחות, הא דלא מפרש גמרא הטעם זה משום שרוצה ליתן טעם גם לעבדים דפטורות ואי משום טעם זה לבד היה נראה דעבדים חייבים שהרי בודאי הם יודעים לשמרם בטהרה ולפיכך מפרש מפני שהוא מצות עשה שהזמן גרמא • דמש"ה גם עבדים פטורים מיהא מהא דאמרנן דלא מיחו בה חכמים משמע דאם האשה זקנה וידעינן בה שיודעת לשמור את עצמה דאין למחות בה ובה"ג מיירי התם:

The Kolbo writes that the reason is because women do not know how to guard themselves with cleanliness.  I was amazed at this, as if that is the case, why does the Talmud in chapter me shemeto need to explain that women are exempt from tefillin because it is a time bound positive commandment?  Wouldn’t it be true [according to Kolbo] that [whether they are exempt or not and] even if they wish to be strict on themselves, it is prohibited from them to don tefillin since they do not know how to watch themselves with purity!  Rather, it must be that this reason [i.e., that women may not wear tefillin due to cleanliness issues] is not correct according to the Talmudic text.  So too, it says in the beginning of the chapter Hamotzee tefillin that Michal Bat Shaul donned tefillin and the Rabbis did not rebuke her; even though one Pesikta says the opposite, that they did rebuke her, nonetheless, we follow our Talmudic source.  However, one could rebut the [previous] proof, [because perhaps] our Talmud [in me shemeto] does not give this explanation [cleanliness] since it wants to offer a reason why slaves are also exempt.  And if it were for this reason [cleanliness] alone, it would appear that slaves are obligated in donning tefillin, since they certainly know to keep themselves clean.  Therefore the Talmud explains [that women are exempt from tefillin] because of the principle of time bound positive commandments, since it is for this reason that slaves are also exempt. Nevertheless, the source that says the Rabbis did not rebuke Michal does imply that if a woman is elderly [i.e., post-menopausal] and we know that she is capable of watching herself [to stay clean], one should not rebuke her.  And it is such a case that the Talmud has in mind there [i.e. in me shemeto, where women are said to be exempt from wearing tefillin, not categorically forbidden from doing so]. 

The Magen Avraham does not agree with this Olat Tamid.  Magen Avraham (38:3) states:
מוחין כו' - מפני שצריכין גוף נקי ונשים אינם זריזות להזהר אבל אם היו חייבים לא היו פטורין מה"ט דהוי רמי אנפשייהו ומזדהרי כנ"ל דלא כע"ת:
We protest: Since they need a clean body and women are not particularly careful with cleanliness; but if they were obligated, they would not be exempt for this reason since they would accept the mitzvah upon themselves and they would thus be conscientious.  Such appears to me to be the rule, and not like the Olat Tamid.

The whole thrust of the Magen Avraham is to reject the approach of the Olat Tamidwho permits women to wear tefillin when they are clean). Magen Avraham accepts that once one is not obligated to wear tefillin, one is not careful to be clean and only those obligated are careful, whereas Olat Tamid thinks cleanliness is unrelated to obligation. [2]

Now consider whether one ought to rebuke a [male] slave who wishes to wear tefillin.  Like a woman, he is not obligated in the mitzvah of tefillin, but yet he seems to have no practical issue with guf naki factually. If he were to don tefillin (which he is not obligated to at all) should we rebuke him?  One could claim that the Rama (and the Taz for that matter) both implicitly agrees that a slave is not rebuked since only women (and not slaves) are mentioned as subject to rebuke. Pre Megadim (Mishbatzot 38:2) [3] disagrees and states:

מוחין. עיין ט"ז. ומ"א [ס"ק] ג'. ומשמע עבדים אין מוחין שיכולין להזהר. וזה אינו, דגם כן אין זהירים דפטורים, וגם גריעי תו מנשים דעד א' נאמן באיסורים וספרה לה [ויקרא טו, כח]. ועבדים בסתמן לא [נאמנים] עיין ש"ך יו"ד סימן א' [ס"ק ב]. גם על כרחך פשיטא אין מניחין שלא יעלו אותו ליוחסין וכדומה:

We Object:  See Taz.  See Magen Avraham 3. And this implies that when a slave dons tefillin one does not object, since they can be careful [about cleanliness].  This is wrong, because they are not careful since they are exempt.  Furthermore, slaves are worse than women [in this mitzvah] since “one witness is believed regarding ritual matters” (as it says in Lev 15:28) “she counts” but slaves are not believed; see Shach YD 1:2.  One must also adopt the obvious position that slaves do not wear tefillin [even though they can keep clean] so that we should not mistake them as full Jews.

Pre Megadim makes a few claims here.  While inferring that Rama and Taz hold slaves are not rebuked and may wear tefillin if they wish, Pre Megadim himself holds this is incorrect for several reasons: (1) all those exempt are rebuked according to the Pesikta, since one who is exempt is not as careful to be clean; (2) slaves are deemed less reliable than women in many Jewish law matters; (3) permitting a slave to wear tefillin might mistakenly lead people to believe he is fully Jewish.

Thus, whether we should deem all exempt individuals as being always insufficiently careful about cleanliness, and therefore object to them wearing tefillin, is a dispute between Magen Avraham and Pre Megadim versus Olat Tamid.

The Typographical Error in Mishnah Berurah 38:12

Now, to the heart of this short note: Mishnah Berurah is uncertain about how to resolve the question of whether a slave who dons tefillin ought to be rebuked.  Since this matter is not one that normative halacha needs to resolve (as slaves no longer existed within Jewish life in the time of the Mishnah Berurah) he simply states (38:12):

הנשים - עיין בפמ"ג שה"ה לענין עבדים ועיין בספר תוספות שבת שכתב בהדיא להיפך ועיין בספר תוספות ירושלים:
Women: See Pre Megadim who states the same rule for slaves.  See also Tosafot Shabbat who writes explicitly the opposite and see the work Tosafot Yerushalayim.[4]

Several difficulties present themselves in this simple Mishnah Berurah, but I want to focus on only one: Who is this Tosafot Shabbat that the Mishnah Berurah is quoting and what does he say?  Hebrewbooks.org and Otzar HaChachma data bases list a few books with that title, but none of them seem to deal at all with tefillin. While the Mishnah Berurah does in several other places quote a work by this title, the work that he quotes is always the famous work “Tosafot Shabbat” which deals with Hilchot Shabbat only or (less frequently) the similarly named work which discusses when does Shabbat begin or end?  Furthermore, no discussion of tefillin or slaves is found in those works at all, as far as I can tell.  None of the other works with this title are relevant either, as far as I could tell: none of them had a section dealing tefillin law.

Luckily, someone pointed out to me that his version of the Mishnah Berurah has a footnote by the editors noting that the word תוספות is a mistake in the typesetting of the Mishnah Berurah.  A similar correction is also noted by other new editions of the Mishnah Berurah as well -- I found it in Hotzah Chadashah uMetukenet Benai Brak (5767).  These editions argue that this note (12) in the Mishnah Berurah is supposed to read:

הנשים - עיין בפמ"ג שה"ה לענין עבדים ועיין בספר עולת שבת שכתב בהדיא להיפך ועיין בספר תוספות ירושלים:

Women: See Pre Megadim who states the same rule for slaves.  See also Olat Shabbat who writes explicitly the opposite and see the work Tosafot Yerushalayim.

This makes perfect sense and completely solves the mystery.  The typesetter made a mistake that is easy to understand.  Since on the same line of text already contained the words “tosafot” and the work Tosafot Shabbat was widely cited in the previous volume which was printed (volume 3) whoever was typesetting the work made an error and typeset the wrong word.

Olat Shabbat is another name for the work Olat Tamid (quoted above), who quite clearly, as the Mishnah Berurah notes, permits slaves to wear tefillin, since they are observant of the rules of guf naki.  Olat Tamid was the name used for those sections of the book addressing daily halacha (up to chapter 240 in the Shulchan Aruch) and Olat Shabbat is the name of the same work for those remaining sections that deal with Shabbat and Festival law.  Furthermore, the Mishnah Berurah uses both names at various times without following the exact correspondence to whether he is quoting from the part of the work named Olat Tamid or Olat Shabbat.  For example, in Shar Hatziyun 42:23 he quotes the Olat Tamid on a matter related to tefillin law and he calls him the Olat Shabbat.  The work went by two names.

To summarize:  While the Mishnah Berurah in 38:12 quotes a work call Tosafot Shabbat as discussing whether a slave may don tefillin, as far as can be told, no such work exits.  A work named Olat Shabbat does exist which comments on Siman 38 of the Shulchan Aruch and permits a slave to don tefillin.  All of this makes a case so compelling that several new and critical editions of the Mishnah Berurah have noted this must be a typesetting error in the Mishnah Berurah and so have corrected the text accordingly.[5]

What the Mishnah Berurah does not note at all, but is completely clear once you look at the Olat Tamid inside – by now an obscure book that is hard to find, but which is on Hebrewbooks.org and is quoted above – is that for the same reasons that Olat Tamid contends we do not object to a slave wearing tefillin, Olat Tamid also permits a woman who is careful with guf naki (because she is post-menopausal) to wear tefillin.

Furthermore, Mishnah Berurah is fully consistent with the reading of the halacha found in the Olat Tamid when he explains the Rema’s objection to women donning tefillin in his next note, stating simply and directly (38:13) that:

מוחים בידן - מפני שצריכין גוף נקי ונשים אין זריזות להזהר:
We protest: since they need a clean body and women are not particular to be conscientious about being careful [to be clean].

The Mishnah Berurah thus explains why women do not don tefillin by quoting only the rationale that is consistent with the Olat Tamid’s understanding of the Rama, namely: this halacha is fundamentally about cleanliness, and not necessarily obligation (which categorically excludes all women and all slaves, no matter how clean).  Thus, in contrast to Pre Megadim and Magen Avraham, the Mishnah Berurah leaves out the idea that “אבל אם היו חייבים לא היו פטורין מה"ט דהוי רמי אנפשייהו ומזדהרי” (“but if they were obligated, they would not be exempt for reasons of cleanliness”) since that is not consistent with the Olat Tamid, and the Mishnah Berurah holds the Olat Tamid is correct about even a slave.[6] In other words, slaves should be rebuked because they are not meticulously careful to be clean independent of their lack of obligation to put on tefillin.

The Typographical Error in Biur Halacha 39:3

Chapter Thirty Nine of the Shulchan Aruch addresses who can write tefillin, which is a different question than who can don them, although somewhat related.  This is made clear by the comments of the Mishnah Berurah writing in the Biur Halacha in 39:3 which even more forcefully adopts the view of the Olat Shabbat.  The Shulchan Aruch notes that a convert may write tefillin and the Mishnah Berurah continues in the Biur Halacha 39:3 by stating directly:

כשר לכתוב תפילין - כ"ז איירי בגר צדק. ולענין גר תושב הסכימו הפמ"ג ול"ש ומחה"ש [ועוד הרבה] דפסול מטעם דהא אינו בקשירה והשע"ת[7] המציא דבר חדש דאיירי הד"מ דמכשיר בגר תושב דקיבל עליו כל המצות חוץ מאיסור נבילה וא"כ הלא ישנו בקשירה ובאמת נלענ"ד שגם זה אינו דהלא עכ"פ אינו מוזהר על הקשירה ותדע דאטו אם אשה ועבד יקבלו עליהן מצות תפילין יהיו כשרים לכתיבת תפילין ואם תדחה משום דמוחין לנשים על הנחת תפילין וכדלעיל בסימן ל"ח ז"א דכל זה רק מחמת חומרא בעלמא שחוששין להפסיקתא אבל ש"ס דילן סובר דאין מוחין ע"ז וכדאיתא שם בב"י ועוד עבדים יוכיחו דאין מוחין בהן וכמו שכתבתי לעיל במ"ב בשם התו"ש:

A convert may write tefillin: All this is discussing a proper convert, but as to a ger toshav, the Pre Megadim Levushai Serad, and Machatzit Hashekel [as well as many others] all agree may not write tefillin since they are not obligated to don tefillin.  Sharai Teshuva finds another novel matter here when he notes that the Darchai Moshe permits a ger toshav [to write tefillin] since he accepted all the mitzvot other than eating not kosher meat, since he is permitted to don tefillin.  In truth in my opinion even this is not correct, since such a person is also not obligated in donning tefillin.  And you should know that concerning even a woman and a slave who accept upon themselves to the mitzvah to don tefillin could they write tefillin?[8]  And if you push this off, since we rebuke women on donning tefillin as noted in chapter 38, that is wrong, since this pushing off is only a mere stricture grounded in being fearful of the Pesikta, but our Talmud rules that one does not rebuke on this as is noted by the Bet Yosef, and even further, we do not rebuke slaves as I noted in the Mishnah Berurah there in the name of the Tosafot Shabbat.

And of course, as the standard new editions of the Mishnah Berurah now note, there is a typographical error -- the last words in the Mishnah Berurah should read Olat Shabbat here also, changing the ת to an ע, making it clear that the Mishnah Berurah has a consistent preference for the approach of the Olat Shabbat-Olat Tamid over the approach of the Magen Avraham and the Pre Megadim, as a better explanation of the Rama.  (The Mishnah Berurah then continues to explain why women and slaves – who can put on tefillin as a matter of tefillin law – still cannot write them.[9])

According to the Mishnah Berurah, the Rama directs rebuke of women in 38:3 for donning tefillin not as a matter of the minimal technical halacha, but only as a chumra bealma since he is of the view that the Pesikta’s formulation is inconsistent with the Bavli and thus not the formal mandatory rule of halacha ever (just like the Olat Tamid notes).[10] Furthermore, the Mishnah Berurah makes it clear here that he is ruling against the Pre Megadim on the matter of rebuking slaves who don tefillin which he left as an open dispute in 38:12.

A Test Case: The Cheresh

Consider a test case: Should we rebuke a cheresh (fully mentally incapacitated man) who wishes to wear tefillin, if he is competent to maintain cleanliness?  This is an excellent test case.  He is Jewish (like a women is), but exempt from all mitzvot, including tefillin, and he lacks the basic credibility that even a Jewish woman has to label food items as prohibited or permissible, so two of the three reasons of the Pre Megadim apply to him, mandating rebuke.  For our present purposes, his “risk profile” vis-à-vis wearing tefillin thus falls in between a slave and a woman: he is riskier than a (post-menopausal) clean woman and less risky than a slave.

Olat Tamid states (37:1) that since a cheresh can maintain cleanliness, he should not be rebuked for donning tefillin.  The Mishnah Berurah (37:12) rules that way and he cites as precedent for this the classical work Baer Hatev, who in turn cites the classical work Olat Tamid![11]

חרש המדבר ואינו שומע או שומע ואינו מדבר חייב להניח תפילין אבל אין שומע ואין מדבר אין מוחין בידו מלהניחם אם רוצה [בה"ט]:

cheresh who speak but cannot hear, or hear but cannot speak is obligated in tefillin, but one who can neither listen nor speak one does not rebuke them when they don tefillin if they wish. [Baer Hatev]

Thus, from the Mishnah Berurah’s ruling regarding a cheresh, we see that he clearly rejects the view that “one is not obligated may not don tefillin since such a person will not be particularly careful to be clean.” Rather, Mishnah Berurah only cites the Pre Megadim’s view about slaves apparently in deference to the Pre Megadim’s other concern: since slaves are not full Jews, permitting them to wear tefillin might confuse others about their personal status as full-fledged Jews.[12]  Otherwise, Mishnah Berurah adopts the Olat Tamid’s explanation of the Rama in this halachic area – i.e. focusing on cleanliness, and not automatically deeming exempt individuals as incapable of maintaining proper cleanliness.

Conclusion

The Mishnah Berurah does not address the question of whether a carefully clean woman who wants to don tefillin may do so. Such a radical break with tradition would never be raised or considered in a completely hypothetical vacuum by the Mishnah Berurah.  The Mishnah Berurah simply never discusses the matter and he is silent.  How should we understand his silence?  Did he think we ought to rebuke such a woman as a matter of tefillin law[13]?

With all of this data in hand – most importantly, the proper text of the Mishnah Berurah – it is reasonable to conclude that the best way of interpreting the Mishnah Berurah is that he does not think that a woman who is sufficiently careful about guf naki[14] needs be rebuked – as a matter of tefillin law – if she does don tefillin.  Proof to this can be found from: (1) his citation of the Olat Tamid in the case of a cheresh and a slave and (2) the Mishnah Berurah’s referral to the view of the Pesikta as a חומרא בעלמא, a mere stricture, [15] and (3) his focus on cleanliness as the reason for rebuke of women, like the Taz and the Olat Tamid.
Further proof of this is the unstated view of the Mishnah Berurah can be found from: (4) the Mishnah Berurah’s rejection of the formulation of the Magen Avraham that all those who are exempt are prohibited as a matter of tefillin law and (5) the Mishnah Berurah’s sub-silento rejection of the Gra’s view that the Pesikta and the normative Bavli both agree that women ought to be rebuked and (6) the Mishnah Berurah’s implicit rejection of the view of the Levush (and others) that while Michal bat Shaul could put on tefillin because she was unique, no one else can.[16]

There is no other viable theory left other than to accept that -- to the Mishnah Berurah -- the proper way to understand the Rama’s rule that one should rebuke a tefillin donning woman is limited to one who either is not clean, which is the base line view of the Talmud Bavli or, as chumra be’alma, to rebuke any woman who is “not particular to be conscientious about being careful [to be clean]” as he states in 38:13.

Thus, the purpose of this article is to make an intellectually honest point which hopes to contributes to reasoned discussion: those who have acknowledged the view of the Olat Tamid as permitting slaves, clean women and chereshim to don tefillin, and yet dismiss that view as supposedly rejected by all normative poskim, are mistaken, once the correct text of the Mishnah Berurah is established.

To what extent this has any practical halachic application is for a different discussion.  For example, there might very well be other excellent rationales outside of technical tefillin law prohibiting such conduct,[17] or one could look to the view of the Magen Avraham and Pre Megadim and object to women wearing tefillin due simply to their lack of obligation or one could note that even without the rebuke obligation, tefillin are still no better than tzitzit and our rule is that women do not wear them either as a matter of very old custom. None of this practical halacha is the focus of this paper. [18]

The attached six pages are copies of the front matter and relevant pages from two modern editions of the Mishnah Berurah which note the typographical errors mentioned and correct them.







[1] There are a number of works entitled Olat Tamid in the rabbinic library and this Olat Tamid is the one that the Magen Avraham had which is by Rabbi Shmuel ben Yosef Orgler found at http://hebrewbooks.org/21386 at page 28.
[2] Pre Megadim reinforces this as the correct read of the Magen Avraham in Ashel Avraham 3 where he emphasizes that one who is exempt is not careful.
[3] The Pre Megadim is commenting on the Taz – as he understands the Taz to agree with the Olat Tamid here and to focus only on cleanliness and not level of exemption – and/or is inferring from Rema’s note that we object to women who wish to wear tefillin that Rema would not object to a male slave wearing tefillin.
[4] Tosafot Yerushalayim cited by the Mishnah Berurah is not in chapter 38 of his work (where you would expect it) but in OC Chapter 17.  Tosafot Yerushalayim adopts the reasonable view that only slaves like Tevi of Rabbi Gamliel can don tefillin, as a correspondence to the exceptional case of Michal bat Shaul.  His view is that among people who are not obligated in tefillin, only exceptional individuals are sufficiently careful about cleanliness ought to don.  Tosafot Yerushalyim is itself a fascinating work which attempted to incorporate the view of the Jerusalem Talmud into the normative halacha.
[5] A copy of the page from the Mishnah Berurah Hotzah Chadasha uMetukenet Benai Brak 5767 can be found at the end of this paper with the correction noted on the Hagaot veTekunim 5
[6] See the next section for an explanation,
[7] The corrected text of the Mishnah Berurah notes that this is the Yad Efraim.
[8] Although one could read this as a statement and not a rhetorical question, that would be a mistake as it could create a dispute between this statement and the text of the Shulchan Aruch in OC 39:1.  It would also be inconsistent with other parts of the same Biur Halacha not quoted here.
[9] Who can write tefillin (as opposed to who can don them) is not a topic we focus on now.
[10] This Biur Halacha was pointed out to me by Rabbi Shlomo Brody while he was reviewing a prior draft of this article.
[11] A reader suggested to me that maybe the Mishnah Berurah ruled one should not rebuke a cheresh only because he was aware of the fact that some of his contemporaries considered an intelligent cheresh to be fully obligated in the mitzvah.  I think that is mistaken as the Mishnah Berurah is directly quoting the Baer Hatev who is directly citing the Olat Tamid, who was from the 1600's and was not speaking about the modern “smart” cheresh. The Mishnah Berurah and Baer Hatev’s source – the Olat Tamid – clearly based this ruling on his view that one who is exempt but clean can wear tefillin.  Moreover, if the Mishnah Berurah were merely showing deference here to the view that a (modern) cheresh is obligated to wear tefillin, then surely he would have strongly urged the cheresh to don tefilin – and not just written that we acquiesce to one who chooses to do so. (Note that Aruch Hashulchan argues in OC 37:4 and objects to a cheresh wearing tefillin, but only because he cannot image such a person being meticulously clean.)
[12] And even that fear is ultimately rejected by the Mishnah Berurah in the Biur Halacha 39:3, as noted above.
[13] What I mean by “tefillin law” is just the halacha of mochen and the like, and not the more general halachic conversation concerning change or minhag or authority, all of which are important, but not part of this article and could form independent grounds for prohibiting (or permitting) this conduct.
[14] Because she is post-menopausal according to the Olat Tamid.
[15] I am uncertain how exactly to translate the term chumra bealma.  In their recent article, Rabbis Dov and Aryeh Frimer translate it as “mere, often unbased, stringency (humra be-alma)” which they note is one of the cases where nachat ruach lenashim does allow such sometimes to be ignored.  See Women, Kri’at haTorah and Aliyyot,” Aryeh A. Frimer and Dov I. Frimer, Tradition, 46:4 (Winter 2013), 67-238 at pages 115 to 117 and particularly note 358.

[16] Reasons five and six are important to digest, in that who the Mishnah Berurah quotes or does not quote is a very telling mark of what he thinks is reasonable.  Here he does not quote Gra’s approach in 38:3 precisely because he has rejected Gra’s approach of harmonizing the Pesikta and the Bavli in 39:3 by calling the Peseikta a chumra be’alma.  So too, he rejects the approach of the Levush and Aruch HaShulchan of limiting the Bavli to the rare and special Michal bat Shaul since the Mishnah Berurah adopts the view of the Olat Tamid and resolves the conflict by insisting that the Pesikta is not the normative halacha.  The view of the Aruch Hashulchan needs its own analysis, which I hope is forthcoming.  For a more general understanding of the Mishnah Berurah, see my forthcoming work (with Rabbi Ira Bedzow) “The Codification of Jewish Law and an Introduction to the Jurisprudence of the Mishna Berura” (Academic Studies Press, 2014).

[17] See for example the modern work Piskai Teshuva 38:3 who gives one such reason and the recent teshuva by Rabbi Hershel Schachter on this matter who gives many such reasons.
[18] Besides these rationales which explain why the Mishnah Berurah simply does not discuss this issue, allow me to speculate in a footnote that perhaps the Mishnah Berurah does not cite the Olat Tamid on the topic of women donning tefillin at all because he rejects in the view of the Olat Tamid that menstruation is a valid concern for guf naki matters and that was the central to the holding of the Olat Tamid.

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