Thursday, April 17, 2008

One Who Puts On Tefillin on Chol haMoed Is Chayyav Misa?

So says the Zohar Chadash, Shir haShirim (page 60). This gets Shadal quite upset, and he argue against this.

This practice of not putting on tefillin on chol haMoed is my own minhag. I think because of the Gra, the standard practice in Eretz Yisrael is not to wear. Many years ago, on Succos or Pesach a friend of mine put on tefillin in public at the kotel, and got yelled at by (IIRC) an elderly chareidi man for his troubles. In America, in shul, people who put on tefillin do so and those who don't do not. But in Israel, perhaps in public at the kotel, and perhaps because of the prevalence of the custom such that this person never heard of an alternate custom in the matter, someone viewed it as problematic.

Rabbi Howard Jachter has a comprehensive article on the subject. Amidst it all, he states "In fact, the Zohar strongly advocates refraining from wearing Tefillin on Chol Hamoed" which might be an understatement. Read it all -- it is interesting.

It is not just the position of the Zohar, but Zohar is just echoing certain Rishonim and stating it in stronger terms.

Rabbi Jachter also writes: "In Eretz Yisrael, the ruling of the Vilna Gaon to refrain from wearing Tefillin on Chol Hamoed has been universally accepted. One who publicly dons Tefillin during Chol Hamoed in Eretz Yisrael is inviting a strong protest from his fellow worshippers." This friend of mine experienced this firsthand.

Here is Shadal, as the guest, from the beginning of Vikuach al Chochmat haKabbalah, arguing that it one is required to wear tefillin on chol haMoed; and that even if not, it is incorrect, and terrible, to say that one who does this is liable to the death penalty. He writes:
And the man became enraged and said: One who performs the commandment of his God is liable to death? Woe to the ears which hear this! And how do you speak to put deviation of the Sages of the Mishna, to place in their mouths something like this, that one who puts on tefillin on a day of the days in liable to death? And is it not that even on Shabbat and Yom Tov they did not say that it is forbidden to put on tefillin, and that one who puts them on is liable to a punishment, neither light nor stringent, but rather they only said that Shabbat and Yom Tov are not the time of tefillin, for they themselves are a sign. And how is it forbidden to put on tefillin on chol haMoed? And do we not find in the Talmud Yerushalmi (brought down in hagahot Maimoniyot) that one of the Sages commended a scribe that he write tefillin on chol haMoed for his own needs, so that he will be able to give his tefillin to another person who lost his tefillin on chol haMoed? And if one who puts on tefillin on chol haMoed is liable to death, what will be the penalty of the scribe who writes them on chol haMoed to put them on himself, in order to lend his own to another Jew so that he too will put them on on chol haMoed?
I would suggest that there is indeed an opinion that there is a violation at play, not just an exemption. If we look in Yerushalmi Berachot 14b:

ר' אבהו בשם רבי אלעזר הנותן תפילין בלילה עובר בעשה. ומה טעם (שמות י) ושמרת את החוקה הזאת למועדה מימים ימימה ימים ולא לילות ימימה פרט לשבתות וימים טובים והא ר' אבהו יתיב מתני ברמשא ותפילוי עילוי מצדדין הוה וכמין פיקדון היו בידו אית דבעי מימר לא אמר אלא הנותן אבל אם היו עליו מבעוד יום מותר

Thus, Rabbi Abahu is of the opinion that there is not just exemption on Shabbos and Yom Tov, but prohibition. As he says, עובר בעשה. My own theory of Rabbi Abahu (which I also think is applicable to certain positions in Bavli which may have been misinterpreted) is that where there is a command and a derasha which restricts to a particular time, or class of people, it is not just an exemption but an issur aseh. Thus, in that same gemara, we find that Michal bat Kushit (who is Michal bat Shaul in Bavli) put on tefillin, and the Sages did not protest. But for Rabbi Abahu, who claims this violates an issur asei, the Sages did protest!

I would guess that Shadal was unfamiliar with this particular Yerushalmi, which is not, after all, in the 10th perek of Eruvin, where it might have influenced discussions of the matter more.

This does not mean that Rabbi Abahu would agree that chol haMoed has the same status as Yom Tov, in this respect. I am only arguing on the level of whether there is a violation.

An violating an issur assei is certainly not necessarily to be equating with being liable to death. This might be poetic overstatement. Of else, an mistaken overstatement.


Anonymous said...

Wearing tefilin on hol ha-moed was the standard ashkenazi practice for hundreds of yrs. That it's been abandoned due to minhag ha-gra in E"Y and due to practice of hasidim is regretable. This yerushalmi notwithstanding there are real issurim involved: al titosh torat imeka and other issue involving giving up minhagim if one stops the custom to wear tefilin in one's family. The Rama was not a sinner.

Anonymous said...

Did Shadal comment regarding when the Zohar said the "shfichas zera l'vatola" is the worst avaira out there. I'm no expert in the Zohar, but I recall hearing that the Zohar constantly uses chayiv missa in misdeeds it obviously thinks are serious. Could it be that the author(s) were just using homiletics in order to strengthen their point.

joshwaxman said...

There are indeed other possible prohibitions the other direction. E.g. depending on how you interpret the statement, if one does not put on tefillin when he is required to do so, is he among the poshei yisrael begufan? Of course, if we say that there must be a violation in one direction, we are forced to say that either the Mechaber or the Rema was a sinner.

I think this is a legitimate halachic dispute, just like hundreds of other ones. But that the halachic dispute is based not on the Zohar stating it with no proof, but rather as the dispute among the Rishonim. (The Zohar was just following the rishonim with whom he held.) And there are hundreds or thousands or hundreds of thousands of such disputes, based on differing interpretations of the relevant gemaras. In each of those cases, someone abandoned Toras Imecha, which must have been an acceptable decision. E.g. the waiting X number of hours after fleishigs based on Rashi or the simple bentching and starting a new meal based on Tosafot who claims lo plug Rabbanan. The Gra would likely tell you that yes, in this case you should abandon Toras imecha.

My own thoughts in the matter are presently that yes, one *should* wear tefillin on chol haMoed. Though I have not learned all the sugyos in total depth as I should have. And I am sticking to my family minhag.

joshwaxman said...

indeed, I agree it certainly is a possibility. I am not sure how kabbalists take it, though. Shadal does not mention this, or zera levatala, to the best of my recollection.

It would be similar (though not exactly the same) to how Rambam casts certain statements that ein lo chelek leOlam haBa that Chazal say as overstatement.

Regardless, if in truth the Zohar is a late work attributed to Tannaim, then to say Ein Lo Chelek leOlam haBa is irresponsible. Because (some) people will think you are a Tanna, and that this one position in a dispute must be the *true* one reflected by the gemara. This unfairly cuts down your opponents in machloket about halachic matters, and this type of ziyyuf is thus serious.

This Zohar did presumably influence halachists. But still, even certain *kabbalists* did not pasken like the Zohar in this. E.g. the Rema. Which is interesting. What did they do with this Zohar? True, some draw a line between kabbalah and halacha -- to steal a phrase, divrei Torah midivrei kabbalah lo yalfinan -- but this is surely just megalah milsa...

Anonymous said...

Well fair or not, scaring people into submission has proven time and again to get people to believe what they have to say (just ask George W. Bush :-)) The Zohar probably felt very strongly regarding these points, and therefore was comfortable stating it. And while yes, it says it was written by tannaim, every responsible posek still knows its kabbala NOT mishna and therefore must take it into account while paskening. (Obviously not everybody has, but still...)


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