Thursday 30 April 2020

Early Shabbos


Introduction

For centuries, communities all over the world have started Shabbos (and Yom Tov) before nightfall when convenient to do so, usually in the summer in order to avoid waiting until late to eat. The practice is rarely questioned in Europe, but in Israel there are those who refrain from doing so on halachic grounds. Furthermore, the whole idea sometimes seems strange to those new to Judaism. How can we daven ma'ariv (the 'evening service') in broad daylight?

Here I will attempt to explain what the issues are, provide some historical perspective and present my own halachic conclusions.[1]

Mincha and Ma'ariv

The primary issue is not directly related to Shabbos. There is a dispute in the Mishna regarding the latest time one may daven the Mincha Shemoneh Esrei. The Tana Kama says that one has until the evening,[2] whereas R' Yehuda requires one to daven before Plag Hamincha, 1  halachic hours beforehand.[3]

The gemara attempts to determine the halacha from the practices of some of the amora'im, but concludes that here too there is no consensus. While Rav would daven the Friday night ma'ariv shemoneh esrei before Shabbos, Rav Huna and other amora'im would not daven until night. The conclusion therefore is that as the halacha has not been decided either way, one who follows either opinion is ok.[4]

This gemara clearly implies that the latest time for mincha is also the earliest time for ma'ariv on Friday night.[5] Thus one may choose to follow the opinion of R' Yehuda, and to daven early as some of the amora'im did. The gemara later says that one may also say Friday night Kiddush early.[6] Why then should anyone object?

Living a contradiction?

The Rosh writes that although one may choose which view to follow, consistency is required. One who davens mincha after Plag Hamincha must wait until night to daven ma'ariv; one who davens ma'ariv early must daven mincha before Plag Hamincha.[7] This stringency is not agreed to unanimously,[8] but it is accepted by the Shulchan Aruch.[9]

Nowadays, davening mincha just before sunset is a common practice of most religious Jews. Even those who daven mincha at lunchtime during the week will usually daven before sunset on Fridays (during the winter) and on Shabbos. Thus according to the Shulchan Aruch, we may have expected that also davening ma'ariv early on Friday nights may be a problem.

The reality is that this is not the case. The Shulchan Aruch himself writes explicitly that on Friday night, we should daven earlier than we do during the week.[10] Although the Vilna Gaon is quoted as being opposed to this practice,[11] it is unlikely that this was because of the contradiction. In Europe, especially before there was electricity, it would presumably have been easier to achieve consistency by davening mincha before plag. Even during the week, it was not practical for shuls to daven ma'ariv after dark during the summer.[12]

The time for Shema and its berachos

It is more likely that something else bothered the Vilna Gaon about davening early. The time for the mitzvah of reciting Shema at night is only from nightfall.[13] Although shuls say Shema before Shemoneh Esrei even when davening early, the Yerushalmi explains that this is only in order to daven following words of Torah.[14]

It should therefore be no surprise that Rav Hai Gaon and the Ra'avad both take it for granted that when davening early, one cannot say the berachos that usually accompany Shema.[15] While Shema itself can be said simply as pesukim in the Torah, berachos cannot be said voluntarily. Thus Shema must be said later, together with its berachos.

The common practice today, to say even the berachos early, appears to be based on the view of Rashi. Rashi writes that when davening early, the mitzvah of Shema is fulfilled when we say Shema in bed.[16] As the other rishonim point out, the berachos are not generally said at this time. The Rashba explains that although Shema must be said at night, the berachos are not intrinsically linked to Shema and may therefore be said earlier.[17]

Potential support for the assertion of the Rashba can be found from the halachos of the berachos of the morning Shema. The gemara says explicitly that these berachos may be said even after it is too late to fulfil the mitzvah.[18]

However, this comparison is inaccurate. Although the time restriction on the berachos of Shema is looser than that of Shema itself, it does not follow that the night-time berachos can be said during the day. On the contrary, it is clear elsewhere that one cannot say the berachos of Shema in the morning any earlier than one can fulfil the mitzvah of Shema, despite the fact that Shemoneh Esrei may be said earlier in times of need.[19]

For this reason, when I bring in Shabbos early, I postpone Shema and its berachos until after the meal. While for a shul it may not be a great idea to cut out part of the davening and tell people to do it on their own at home, while we are davening at home anyway due to Corona this problem is less relevant. I believe that this is also what the amora'im did when they brought in Shabbos early.

The correct order

It would appear that the Vilna Ga'on would not have approved of my practice either. How then would he have explained the practice of the amora'im? While we don't have any written record of his reasoning, the practice was already called into question long beforehand, with an explicit reason.

The Rambam writes that although the time for ma'ariv is at night, one may daven ma'ariv for Shabbos or for Motzei Shabbos early. As ma'ariv was originally instituted as an optional tefila, there is no need to be precise about its time.[20]

The Ra'avad argues that it is only proper to daven early due to a temporary pressing need. Under normal circumstances, one must say Shema and the following beracha, relating to redemption (ending גאל ישראל), immediately prior to Shemoneh Esrei. One can only assume that the Vilna Ga'on concurred.

In fact, the preferred order of the tefila at night is subject to a dispute in the gemara. The halacha indeed follows the view that Shema comes first, for the reason quoted by the Ra'avad. However, the statement of the gemara is that one who says the beracha of redemption immediately prior to Shemoneh Esrei is a 'son of the World to Come.'[21] This accolade clearly implies that we are dealing with a meritorious practice and not with an obligation.

We can now understand why the Rambam was less concerned about changing the order, and allowed it on Friday night (and even at the end of Shabbos) without any caveats. Rav Hai Gaon also writes explicitly that when davening early, one need not be concerned with following the correct order.[22] This is also the more straightforward reading of the gemara, which quotes the practice of the amora'im who davened early and does not stipulate that this was only due to an unusual need.

Furthermore, even those who daven later do not in general fully juxtapose Shemoneh Esrei to the beracha of redemption (at least when davening in shul). There are different customs regarding what is said between the berachos of Shema and the Shemoneh Esrei,[23] but all say at least Kaddish. The reasons for this are beyond the scope of this post, but in short, we are not particularly careful about the recommended juxtaposition at night.

Eating First

There is potentially another way to start Shabbos early without any of the problems described above. After davening mincha on Friday, one could simply make Kiddush and start to eat (provided that it is after Plag). Ma'ariv could be postponed until after the meal, at the right time in the right order.[24] Timing davening in shul might be difficult, but while we are davening at home what could be the problem?

The Magen Avraham indeed sanctions such a practice,[25] and most of the poskim follow suit.[26] However, the Vilna Ga'on is quoted as being against this solution too. The claim attributed to him is that when the gemara concludes that Kiddush may also be said before night, this is only as an extension to the leniency regarding davening. It therefore only applies when one has already davened ma'ariv.[27]

Personally, while I certainly do not subscribe to the alleged position of the Vilna Ga'on here,[28] my preference is to daven first for a simple reason - davening after the Friday night meal would be harder for both my children and myself. Others may not have this issue and prefer this option.

Have a great Shabbos, however you start it!



[1] While there are many other articles on the topic online (even in English), I have not found one that gives a satisfactory explanation of the reasons for being stringent (other than by citing opinions of other Rabbis who ruled stringently).
[2] It can be shown that the 'evening' here means sunset, as the gemara explicitly equates the end of the time for Mincha according to the Tana Kama with the end of the twelve hours of the halachic day (Berachos 27a). It is nowadays commonly accepted that the twelve hours of the halachic day run from sunrise until sunset, as only when using these times will the length of the halachic day be equal to the length of the halachic night during Nissan and Tishrei (as stated in Niddah 65b. See Shu"t B'Mareh Habazak, volume 8 siman 1, footnote 2).
[3] Berachos 26a (see gemara there 26b-27a).
[4] Berachos 27a.
[5] Most rishonim assume that the same is true for weekday nights, as the gemara also says that R' Yoshiya and other Tana'im and Amora'im davened Motzei Shabbos ma'ariv on Shabbos (Berachos 27b).
[6] Berachos 27b.
[7] Berachos 4:4
[8] See Meiri, Berachos 26b who says that one only needs to be concerned about a contradiction on the same day. The Rambam (Tefila 3:4, 6) does not mention any requirement to avoid a contradiction.
[9] Orach Chaim 233:1
[10] Orach Chaim 267:2, based on Seder Rav Amram Ga'on and Machzor Vitri siman 102. This distinction does seem to run contrary to the gemara quoted above, which uses the practices of amora'im on Friday night as a proof of the halacha during the entire week (see Bi'ur HaGra who alludes to this; Rav Amram Ga'on and Rashi may well not have subscribed to the stringency of the Rosh at all). It is however possible that the Tur and Shulchan Aruch felt that it was not appropriate to apply the stringency of the Rosh to Shabbos, as bringing in Shabbos early is clearly a meritorious practice.
[11] Ma'aseh Rav siman 65
[12] The rishonim at the beginning of Berachos all discuss this and the resultant problem of saying Shema before the correct time.
[13] Mishna and gemara, Berachos 2a. While there are other views there, and Tosfos and the Rosh both conclude that we indeed rely on these views when we daven early, it is explicit in the words of the Rosh that this is a contrived leniency due to the public need.
[14] Berachos 1:1. Tosfos, defending the position that one can fulfil the mitzvah of Shema early, are forced to explain that the Yerushalmi is referring to a now defunct practice of saying Shema before Mincha.
[15] Rav Hai is quoted by the Rashba and Rosh at the beginning of Berachos; Ra'avad Hilchos Tefila 3:7.
[16] Berachos 2a (ד"ה עד סוף)
[17] Responsa of the Rashba 1:47. See also Chidushei Talmidei Rabbeinu Yona, Berachos 1a-b, who write that even the berachos may only be said after sunset. Beforehand, the references to night within the first beracha are not appropriate. The Shulchan Aruch (Orach Chaim 235:1) quotes only the view of the Rashba in his responsa.
[18] Berachos 10b
[19] Berachos 30a. This proof is pointed out by R' Moshe Feinstein in Igros Moshe, Orach Chaim 2:60. His attempt to resolve this gemara according to Rashi is a stretch.
[20] Hilchos Tefila 3:6-7. The Rambam appears not to have accepted the gemara's assertion that davening ma'ariv early is based on the view of R' Yehuda regarding mincha. Presumably, he had another source unknown to us.
[21] All in Berachos 4b.
[22] See footnote 15.
[23] The second beracha, starting השכיבנו, is considered an extension of the beracha of redemption (Berachos 4b).
[24] If one started eating a regular meal on Friday afternoon and it got dark, it is certainly permitted to continue the meal by first making Kiddush, despite not having davened ma'ariv (Pesachim 100a).
[25] 271:5
[26] See for example Mishna Berura 271:11.
[27] Ma'aseh Rav siman 117.
[28] It reads rather more into the gemara than what appears to be written.

Thursday 9 April 2020

Work that can't be done


Introduction

A question that has arisen for many over the last few weeks is whether a person is supposed to pay a worker for work that could not be done due to the current restrictions. I have seen some surprising guidelines given even by learned people, and I thought it would be beneficial to attempt to alleviate some inevitable confusion.

I am not going to deal with any obligations that may arise from employment law (these are not dependent on the Torah[1]) or with what governments should be doing to support those whose incomes have been hit. The sources I will quote are relevant mainly for self-employed contractors and those who pay for their services.

One further disclaimer is that no-one should use what I write here as a personal instruction. Each person's circumstances are slightly different and if there is any dispute, it is forbidden to issue a ruling without hearing both sides.[2] The purpose of the post is to clarify the issues involved and to provide enough information for people to make their own judgements as to what applies in their situation.

When one party should have known

The gemara deals with a case of a person who hired workers to water his field using water from a nearby river, only for the river to dry up in the middle of the day. The halacha is dependent on whether this was a common occurrence or not; if it was unusual then the workers lose out. If this was a common occurrence and the workers were from out of town, the owner of the field must pay them. If they were locals (and should have known), they lose out in any event.[3]

The rishonim explain that the only case where the workers are paid despite not doing the work is when the owner knew what the situation was and they did not.[4] The logic is clear: as no work was done, the only thing that can obligate the owner to pay is if the arrangement was unfair in the first place. If he misled the workers into believing that the work could be done, he must take responsibility for this. If no-one was at fault, or both sides were equally aware of the risks involved, forcing the owner to pay is unjustified.[5]

Other cases beforehand in the gemara are based on the same principle, although I have not quoted these cases here as they involve other intricacies not relevant to our discussion. The conclusion for us appears clear – as no-one could have foreseen the current crisis, workers cannot demand payment for work that they could not do.[6]

Is a global crisis different?

Another source may strengthen the argument above. A Mishna deals with one who leases a field, with the agreed payment being a certain amount of produce. If a countrywide plague of locusts or blight affects the yield of the field, the lessee has the right to deduct from the agreed amount accordingly.[7] The gemara states that the same rule applies if damage was incurred as the result of a major water source drying up.[8]

In this case too, the one leasing the field is exempt from paying some of the rent due to the fact that the field didn't "do its job." This is a far less obvious halacha – the field is not a worker and the payment agreed was simply for the right to use it. Although the right to use the field has not been compromised, as the issue is countrywide the lessee is entitled to a deduction.

With this in mind, a related ruling of the Maharam miRotenburg is surprising. He writes that if the authorities forbade the teaching of Torah, affecting the entire area, one who had previously hired a tutor for his son must bear the losses and pay the tutor.[9] If even a rent deduction is in order due to a countrywide affliction, surely the same should apply to payment for work that couldn't be done?

This question is raised by the Rema. He explains that the deduction in the case of the field only applies to rental of land. A landowner is deemed somewhat responsible for events effecting his land (even those occurring due to no fault of his own), and thus must bear the ensuing losses.[10] This only applies to issues with land.

This answer is astonishing. If a person is responsible for events affecting his land, he should certainly be responsible for events affecting his personal ability to work! In the case of the tutor, it is hard to see any justification for taking payment when the agreed work was not done, whether the work was prevented by a local or national cause. The Vilna Ga'on indeed writes at relative length and concedes that there is no adequate reconciliation for this ruling.[11]

Others struggle to re-interpret the words of the Maharam miRotenburg. The Shach writes that in his case, once the decree was rescinded, the student returned to study with the tutor and the father did not make any mention of the missed time. As the issue was not discussed, it is assumed that the father forgoes his right to a deduction from the payment.[12]

The Aruch HaShulchan explains that in the case of the tutor, the father has to pay because the tutor is still inherently willing and able to teach. The fact that the authorities prevent him from doing so is an external factor, which does not affect the obligation to pay.[13]

This answer is also difficult to understand – as in actuality the tutor could not agree to teach, there should be no reason to pay him. In addition, even if the Aruch HaShulchan is correct, this should not have any bearing on those unable to work due to the coronavirus. I would hope that such people don't consider themselves able to work "were it not for the (evil) decree of the government."

Conclusion

Those unfortunate enough to be unable to work due to the circumstances we are all in now, should not expect their customers to bear the loss. Those unable to pay for services they are not receiving, should know that they are under no obligation to do so.

Of course, those with the financial ability to do so should consider whether it might be appropriate to continue to support the incomes of those who provide them with a regular service and are in a difficult situation currently.

May Hashem help us all return to physical and economic health!

לברכה ולא לקללה!
לחיים ולא למוות!
לשובע ולא לרזון!


[2] See Rema, Choshen Mishpat 17:5.
[3] Bava Metsia 77a. The Rambam (Sechirus 9:6) translates the gemara slightly differently, but the principle remains the same.
[4] See Rema, Choshen Mishpat 334:1.
[5] See Rosh (Bava Metsia 6:3) who invokes the rule of המוציא מחברו עליו הראיה (the burden of proof is on the claimant – see Burden of Proof & Status Quo). It would appear however that in this case there is no dispute over the facts of what happened and therefore no 'proof' is relevant. The Rosh presumably did not mean that this rule is being applied in its standard form, rather that when all is equal, we cannot expect one side to pay the other for their losses.
[6] This of course assumes that any contract or prior agreement between the two parties does not obligate payment in such circumstances. Any such agreement will need to be studied to see what is covered, and whether the agreement has halachic validity.
[7] Bava Metsia 105b.
[8] Ibid. 103b.
[9] Quoted by the Mordechai, Bava Metsia siman 343.
[10] Darkei Moshe, Choshen Mishpat 321. The ruling of the Maharam miRotenburg is also quoted as halacha by the Rema on the Shulchan Aruch in the same siman (se'if 1).
[11] Bi'ur HaGra ibid.
[12] Ibid.
[13] Choshen Mishpat 334:10