Volume 51 Number 94
                    Produced: Tue Apr 11  4:51:41 EDT 2006

Subjects Discussed In This Issue: 

Two Dinim in Minyan and Counting a Mechallel Shabbos
         [Chana Luntz]


From: Chana Luntz <chana@...>
Date: Sun, 9 Apr 2006 02:07:08 +0100
Subject: Two Dinim in Minyan and Counting a Mechallel Shabbos

Tal Benschar writes: 

> 1. There is a Teshuvas ha Rambam which states that one may NOT count 
> Karaites to a minyan.  This is the very same Rambam who came up with 
> the famous categorization of "Tinok she Nishbah" and applied it 
> children who are raised in the Karaite "faith" (for lack of a better 
> term), so it would appear that that category does not, by itself, 
> resolve the problem.  The Rambam also bases this psak on a very 
> cryptic reason -- he cites a Mishna in Eruvin that "mi she eino modeh 
> be eiruv eino mitztaref le eruv" -- whomever does not accept the 
> rabbinic concept of an Eruv cannot be joined into an Eruv.  (The 
> Sadducees at the time of Chazal were the principle group at issue.)  
> The connection between that halakha in Eruvin and minyan is not 
> apparent.

The connection would seem to be intuitively rather more obvious once you
realise that the Karaites, like the Sadducees, rejected rabbanic
understandings and interpretation.  To quote Ben Sasson "A history of
the Jewish People" p448 under the heading Karaites: "In the tenth
century we find Karaites in the full sense of the word, ie Bibilicists.
We hear the views of Jews who relied exclusively on the scriptural text
and their own comprehension of it.  They categorically rejected the
Talmud and its homiletic methods as a burden that should no longer be
borne and as a human invention, coming from those who deceived the
people thorugh the force of tradition and their own institutional
powers.  They decried the resulting elimination of direct and individual
contact between the Jew and the Torah and the fact that the people were
led to follow the "evil shepherds"."

No surprisingly, minyan as a rabbinic concept derived from the Talmud is
likely to be something that they indeed did not accept.  And even one
who was only a Karaite because he was brought up in the Karaite
tradition would presumably not accept the principle of minyan, unless
and until he had gone a long way from his roots.

The idea of not being within the concept if one does not believe in it
has much wider application, including to d'orisas (see Rambam discussed

> 2. Rav Moshe Feinstein also has a cryptic statement in one of his 
> teshuvas.  There is a Machlokes between Rashi and Tosafos in Megillah 
> about saying a davar she be kedusha which requires ten.  Rashi holds 
> that even if nine have already davened, if one person arrives late he 
> can say kaddish, barchu, etc.  Tosafos, however, maintains that one 
> requires that at least the majority of the minyan be made up of those 
> who have not yet davened.  (The Rambam holds like Tosafos).  The 
> Shulchan Arukh states that lechatchila we require that at least six 
> have not davened, but b'dieved we rely on Rashi and permit even one 
> person who has not yet davened to say kaddish and borchu before nine 
> who have already davened.
> Rav Moshe Feinstein's psak indicates that the counting of the 
> mechallel Shabbos is dependent upon this view of Rashi, which we only 
> accept bedieved.  Why this should be so is not immediately obvious.
> 3. I once gave a shiur on this topic where I suggested that 
> the explanation to both issues is the same thing.  As Mark 
> Steiner wrote, a kiddush Hashem may simply be the act of an 
> individual who is doing that act BEFORE a minyan of ten.  
> (Think of a person who is giving up his life al kiddush 
> Hashem in a yehareg v'al yaavor situation.  While a minyan 
> needs to be present, clearly only that individual is doing a 
> kiddush Hashem.)  This is the paradigm followed by Rashi -- a 
> statement of kedushah BEFORE a minyan.
> But sometimes, the halakha requires a TSIRUF -- a combination 
> of people for a particular purpose.  This can be a public 
> prayer or creation of an Eruv -- a combination of the domains 
> of the various householders in that area.  The Mishna in 
> Eruvin tells us that if one does not accept the halakhic 
> obligation or concept for which the group is combining, then 
> one cannot join that group.  That is why the Rambam -- who 
> holds like Tosafos that one requires a combination of a 
> tsibbur, of whom the majority need to be obligated in 
> davening -- did not permit counting Karaites to a minyan.

I agree that the statement in Rav Moshe's teshuva (it is in Orech Chaim
Chelek 1 siman 23, the one we have been discussing about counting a
mechallel shabbas and the analogy to spies) is indeed cryptic and
difficult to understand.  However, I have several difficulties with your

A) If there is a linkage between the understanding of Tosphos and the
concept of Eruv, or a group combining, why does Rav Moshe not bring
that?  It is not as though he does not reference several sources in the
paragraph dealing with the position of those who hold that you need the
majority of the minyan not to have davenned.  But the concepts he brings
are firstly a concept from shchita, ie the slaughtering of animals, and
subsequently a link to a concept from tephilin.  Neither of these relate
to tziruf of a group. I agree that both of these references appear
cryptic, but they are clearly being linked by Rav Moshe, while there is
no mention of eruv and tziruf.

B) If you actually read the Tosphos on which the psak in the shulchan
aruch is based (Megilla 23b), Tosphos brings the source for their din,
which they cite as a Masechet Sofrim.  And the Masechet Sofrim itself
cites a proof text from Shoftim 5:2 (it is actually the song of
Devorah).  The pasuk reads (I am using the Koren translation, the pasuk
itself is not that straightforward) "In times of tumultuous strife in
Yisroel/when the people willingly offered themselves/praise the Lord"
[the Hebrew is b'faroah p'raos b'yisorel, b'hisnadev am barchu Hashem"].
Masechet Sofrim apparently says that you need seven not to have davened
because this pasuk has seven words, or some say six, because it is six
up to and including barchu.  Now I agree that this Masechet sofrim is
itself not exactly straightforward - why this pasuk, and why the number
of words?  But still, surely one would want to explain Tosphos in terms
of the source that they themselves give for their din.  And especially
as there seems to be a stress on six or seven (why can you not therefore
say that so long as the numbers of mechallel shabbas b'farhesia are no
more than four, it is OK?)

C) In the midst of this difficult paragraph in Rav Moshe discussing the
position of those who hold you need rov minyan [the majority of the
minyan] to say d'varim shebekadusha, he does not refer to the way the
Rambam holds in eruv or elsewhere, but he does refer to the Pri Megadim
["shelo yitzerafu k'savar haPri Megadim"].  What is the connection to
the Pri Megadim, noting that the Pri Megadim is the source that the
Mishna Brura et al bring as the one who holds that one cannot count a
mechallel shabbas in a minyan, and he is also one of the key sources
that is brought by those who do not allow a cohen mechallel shabbas to
duchan (which would seem to be again an act done before a minyan, to use
the categorisation you employ above)?

So, while I do think that this aspect of Rav Moshe is difficult, I would
be tempted to advance a slightly different solution - which I will work
backwards, because I think it is slightly easier to see if I do it this

The first point to note is that, leaving aside Rav Moshe, everybody else
who allows including a mechallel shabbas b'farhesia in a minyan does not
disagree with the Pri Megadim.  What they say are things like - a
mechallel shabbas b'farhesia today is not the same as the classic
mechallel shabbas b'farhesia of the kind to which the Pri Megadim was
referring- or - we have no formal mechanism for declaring a mechallel
shabbas b'farhesia today - implication being, but if we did we would
follow the din of the Pri Megadim.

However, Rav Moshe appears to be flat out contradicting the Pri Megadim,
because he appears to be talking about the classic gemora definition of
a mechallel shabbas b'farhesia and even so he allows counting of such a
person in a minyan.  But the Pri Megadim is not exactly the kind of
source that one can just ignore, so how does Rav Moshe deal with it?
IMHO (and this is just my intepretation), what he is saying this - well
the Pri Megadim is holding like Tosphos that we need rov minyan (and
only one view in Tosphos), and we, at least bideved, follow Rashi.

And why do Tosphos require rov minyan, based on the pasuk in Shoftim?
Barchu is clearly a reference to d'varim shebekedusha, offering
blessings in the plural - but when does that happen?  When the people
offer themselves "b'hisnadev".  Now a nedava in classic rabbinic thought
is a reference to a voluntary korban, a sacrifice at the temple.  Now
don't forget that the fundamental basis for disqualifying a mechallel
shabbas b'farhesia is found in Chullin 5a, and centers around the
willingness to accept the korbanos of all the sinners of Israel, except
a mumar [heretic], a menasech hayain [offerer of wine to idolatory] and
a mechallel shabbas b'farhesia.  But it is this invalidity that is then
applied to the shechita of a mumar (which is what the daf of gemora
around Chullin 5a is about).  And it is primarly about this that the
Shulchan Aruch and the Rambam brings the din that a mechallel shabbas
b'farhesia is like a non Jew and therefore his shechita is not valid.
Something that the Pri Megadim would seem to extend to minyan and a
cohen duchening etc.

The fact that the shechita of a non Jew is not valid is explicit from
the Mishna in Chullin 13a.  However the gemora there does not give a
source for this.  However Tosphos does on Chullin 3a (s'v "kasavar"),
and explains the din of the shechita of a non Jew being invalid being
based on the pasuk (Devarim 12:21) which is the primary command in the
Torah to do shechita.  And that pasuk says "and you shall slaughter your
flock ... And you shall eat" [v'zavachta .. Vachalta"].  Now Tosphos
explains that which you slaughter you may eat as if to say, from those
who are within the command of shechita [a bar zvicha] thereby excluding
a non Jew who is not commanded in shechita.  And it would seem to that
it is *this* Tosphos to which Rav Moshe specifically refers in his
cryptic paragraph- as he quotes the reference to needing to be a bar

But there is another case where a pasuk is very similarly intepreted,
and that is in relation to the writing of tephilin.  Because the halacha
is as brought in gitten 45b that only those within the obligation of
tying tephillin can write kosher tephillin, and this is similarly based
on the pasuk (this time brought explicitly in the gemora) from Devorim
11:18 "and you shall tie ... And you shall write" all about whom it is
taught and you shall tie [the tephillin] it is taught that you shall
write [kosher tephilin] - and you will see that this gemora is brought
on a mishna that invalidates the tephilin of a non Jew, but there is
also discussion and halachas invalidated those written by a min
[heretic].  And the Rambam writes on this in hilchos tephilin perek 1
halacha 13 that such tephilin is possel because it is written "and you
shall tie.. And you shall write" those who are commanded on the tying
*and who believe in it" [v'mamin ba] that one can write.  Ie the reason
that a min is excluded is because of his lack of belief in what he is

Now you should also know that Rabbanu Tam in Gitten 45b learns [as
brought in Tosphos s'v Kol] that this rule about those who are not
commanded should not be involved in the preparatory work (such as
writing) should be extended to matters such as tying a lulav or tzitzis,
but Tosphos there rejects this position, bringing various proofs, and
holds that this halacha applies davka to tephillin etc because of the
specific pasuk of "and you shall tie .. And you shall write".

So I would read the cryptic paragraph in Rav Moshe as follows - ie after
discussing the permissibility of including in a minyan following Rashi
and the concept of the spies:

"But according to those who hold that you need rov minyan [the majority
of the minyan][for d'varim shebekedusha] it is possibly that since they
are not able to fulfil the obligation, they are not considered to be
obligated in it [d'lo mekaymi, yesh l'chashivam k'lo mechavi] like
Tosphos on the matter of shechita that one who is not considered a bar
zvicha and therefore it is possible [efshar] that they should not be
counted [yitzerafu] like the opinion of the Pri Megadim.  But even
according to their opinion it is possible to doubt this [l'pakpek]
because perhaps only there [we exclude on the basis of not being able to
fulfil the obligation] because of what the Torah requires that the
shochet be a bar zvicha because we learn this from a pasuk that you
slaughter that you may eat and there is in the language that there
should be an act of slaughter like there is in the language an
obligation to slaughter, and also in Gitten 45 where they exclude from
the tying [of tephilin] all who aren't within the tying are invalid to
write and even a mumar because there is in this language that there
should be an act of tying like there is in the language that there
should be an obligation of tying, but not because there is a general
principle that one who is not able to fulfil the obligation is like one
who is not obligated where there is no special torah language in
relation to this. And therefore if they now come to daven in a minyan
there is a basis to permit to join even according to that position [ie
the position of those who need rov minyan, and contrary to the Pri
Megadim].  But according to our position, for barachu, kaddish and
kedusha you can join him ... Since he is in fact obligated in tephila"

Shavuah tov



End of Volume 51 Issue 94