Simanim 72-74 Participants in a Funeral

  • Rav Asher Meir
The Israel Koschitzky Virtual Beit Midrash

Mishna Berura
Yeshivat Har Etzion

SHIUR #43: Simanim 72 - 74


by Rav Asher Meir






            We pointed out last week that in siman 71 two different exemptions from mitzva-performance were present.  One is the general one of "osek be-mitzva" which does not remove the individual's status as one obliged in the new mitzva but allows him to defer it since he is occupied.  The other is the special exemption of a person who is obliged to concern himself with the burial of a close relative, for whom there is an actual obligation to desist from performing most positive commandments as a sign of respect for the departed.


            This week we have yet a third type of exemption: "tirda de-mitzva."  This is a person who is not actually occupied - "osek" - with a mitzva, but he is preoccupied with being prepared to carry it out.  Unlike an "onen" who is completely free of all positive mitzvot, and unlike an "asuk be-mitzva" who is at least granted a deferral from all such mitzvot, a person who is "tarud" - worried or preoccupied - is only free from mitzvot requiring special concentration, which a state of worry and concern precludes.


            Both exemptions are learned from KS on Sukka 25a.  But "osek be-mitzva" requires an additional source - from the Pesach sacrifice - to tell us that the exemption extends even to commandments whose neglect is liable to "karet."


            The gemara does explicitly say that "tirda de-mitzva" only applies to commandments requiring special concentration.  It IS a logical inference, since if one is not actively busy there is no reason to be exempt from mitzva-acts.  Furthermore, the examples found in the gemara are KS, tefillin, and prayer, commandments which are known to require the attention of the one performing them.  (The commandment of tefillin requires awareness constantly, not just when putting them on - SA OC 28:1.)  This is as opposed to "osek be-mitzva" which explicitly applies to all mitzvot of the Torah - Sukka 26a.  I did find this inference in the Rishonim - see Sefer HaYashar 99.






            The practical halakhic relevance of this siman is limited nowadays, even with the renewed vogue of "family beds," because customarily people sleep with some kind of pajama.




            I found this halakha in the following contexts:


1.  OC 73 (our siman): Body contact of another person prohibits one from saying KS.  But a spouse is not considered "another person."


2.  YD 234:56: One who has a firm basis to regret that he made a vow, may have it released.  But he can not release himself from his own vow; rather, he must find someone else (a qualified Torah scholar or a beit din of lay persons) to release him.  A husband can not be among those releasing his wife from a vow, because that would be like releasing himself.  (This has no relation to the right of the husband to unilaterally uproot certain vows of the wife, even if she does NOT regret them.)


3.  YD 252:4: In order not to encourage kidnapping, we may not redeem captives for significantly more than their fair market price - that is, the benefit the captors could gain even without a ransom.  But a person is not limited as to how much he may pay for his own freedom; according to some rulings, one may also pay any amount to ransom a spouse, who is like oneself.


4.  YD 314:4.  Normally, anyone is considered a reliable witness regarding the status of an object, even if he has an interest.  So I can trust someone who sells me meat that the meat is kosher.  But kohanim may be so anxious that a blemish occur in a first-born animal (bekhor), thus permitting it to be eaten, that they may be suspected of creating a blemish intentionally - in which case the animal is NOT permitted.  However, even though they are not trusted to testify, their family members are - but not a wife, who is considered to be "ke-gufo," like the husband himself.


5.  YD 334:2 : It is forbidden to approach within four amot of a person in "nidui" - under a ban.  But the spouse is exempt, because one's spouse is like oneself.  (This does not mean, however, that one may not approach the spouse of a "menudeh.")


            We can generalize and say that one's spouse is like oneself bodily (1, 5) and motivationally - that is, the motivations and inalienable interests of the wife are the same as those of the husband and vice versa (2, 3, 4).


            It goes without saying that the most important application of this principle is that mentioned in Yevamot 62:b, ruled in Rambam Ishut 16:19: a man must love his wife like his own self  - and honor her even more than himself.






            The principles underlying the laws of this siman are precisely outlined in the citation from the Pri Megadim which introduces the siman.  Here we will bring sources for these principles.


            "One may read KS facing tzoa be-asheshit [filth covered with glass] since the important thing is that it should be covered.  But one may not read KS facing erva be-asheshit [private parts seen through glass], since the Torah say "Nakedness shall not be SEEN among you" (Devarim 23), and here it is visible." (Berakhot 25b)


            We see that this is considered a Torah prohibition, and it is dependent on visibility.  The BH understands that this same verse is the source of three of the five principles: that he should not see erva - i.e., his own (1); that his erva should not be "seen" - even as it were before God, i.e., he must not be naked when he reads (3); that he should not see erva - of his fellow (4).


            At any rate, there must be actual "erva" present.  Immodest pictures are abhorrent any time and certainly when one is saying KS, but they are not "erva."


            "If the cold prevents removing his head from under the covers, he should make a partition with the covers on his neck and then read KS; and some say, [a partition] on his heart.... According to Tanna Kama (the first opinion) it is permissible [to read] when his heart can see his erva [private parts]" (Beraita and gemara, Berakhot 24b)


            The SA rules with most Rishonim like the second opinon - that it is not enough to cover one's private parts from the head (at the neck), it is necessary to cover them from the heart as well.  Obviously, this should apply to one's fellow as well, so here is the source for (2) and (5).  Since there is no scriptural source given for this rule, and since it is the subject of an early dispute, it is reasonable to assume that it is a rabbinical restriction, and this is what the MB rules.


            It is clear from the gemara that the water line is like a covering, so that if one's heart is above the water and the waist below this is an adequate covering.  But the water per se is not a covering, if it is clear, then if the water is up to the neck it is necessary to make a partition between the heart and the lower parts of the body.




            Regarding many different forbidden sights there is a distinction between looking and seeing.  For instance, a man may not look at a lady (except in the case of a single girl for the purposes of a shiddukh - EH 21:3) but he may certainly see one (EH 21:1).  On Shabbat one may not look at advertisements but obviously one can not avoid seeing them (OC 307:13).  A little-known example is found in OC 170:4.


            All of the examples in our siman refer even to SEEING.  Problems relating merely to LOOKING are found in the next siman.  Actually, our siman is unique in the SA in that it relates to VISIBILITY - the ability to be seen, even if the erva is not actually seen.


            The problem of VISIBILITY exists only by inherent erva - the sexual organs.  Visibility of other parts of the body is not a problem, even those parts of the body that should be covered and therefore are considered "erva" as far as SEEING them during KS is concerned.


            It follows that for a secluded person - man or woman - a very minimal covering is sufficient for saying blessings.  Customary swimwear covers enough so that VISIBILITY is not a problem, meaning that at a segregated beach anyone may say a berakha (if his hands are clean).




            "This nation is characterized by three things: they are compassionate, bashful, and benevolent [rachmanim, baishanim, ve-gomlei chasadim]." (Yevamot 79a)