Monday, March 08, 2010


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By: Reb Avi Lebowitz

The Mishna lists gamblers among those who are unfit to judge, and as Rashi points out, unfit to testify, since they are regarded as re’shaim. There is a discussion in the Gemora as to why a gambler is unfit to testify or judge. Rami Bar Chamah holds that it is an issue of “asmachta,” which means that the money he wins is regarded as stolen. Rav Sheishes disagrees and attributes the disqualification to not being involved in furthering the general welfare of the public. The Gemora points out that the difference between the two opinions would be a situation where he has another job aside from gambling. The issue of “asmachta” would apply regardless of whether he has another means of support, whereas the issue of furthering the general welfare of the public would only apply if he has no other means of support.

Tosfos points out that both opinions in the Gemora agree that the disqualification is only Rabbinic, because even the opinion who considers it theft due to “asmachta,” since he doesn’t realize the severity of the prohibition; he is not invalidated as a witness on a Biblical level. Regardless, we rule according to Rav Sheishes that the disqualification is attributed to him not being involved in furthering the general welfare of the public which would surely be Rabbinic.

There is a dispute between the Rambam and Rashi as to the nature of the disqualification of not being involved in furthering the general welfare of the public. The Rambam associates this with theft. Since the looser isn’t willingly forfeiting his money to the winner, it is considered “avak gezel.” The S”ma (C.M. 34:40) explains the position of the Rambam - since it is not technically theft, the Rabbis only considered it to be a problem if his main livelihood was coming from his gambling earnings. When the Gemora stipulates that he is only disqualified if he doesn’t have another means of earning a living, the Gemora really means to say that he doesn’t have another source of income. If he has another source of income, or is wealthy so that he doesn’t need the gambling earnings for support, he would be eligible to serve as a witness. However, if he had another income, but required the earnings from gambling to support himself, he would be disqualified. The Gr”a (C.M. 203:44) disagrees with the approach of the S”ma and explains that the Rambam actually rules like Rami bar Chamah that an “asmachta” is not binding, and therefore, he considers it to be theft. But, the Gr”a holds that even though it is stealing, the Sages only invalidated him when he has no other livelihood.

Rashi considers the issue of not being involved in furthering the general welfare of the public to have nothing to do with theft. Rashi considers the issue to be an indication of a very low level of fear of Heaven. The S”ma explains that this only applies to someone who doesn’t work and doesn’t realize the difficulties involved in earning money and would be prone to testify falsely (because he associates money as “easy-come, easy-go,” and doesn’t take it seriously). But someone who works, even if he can’t support himself without the added income from gambling, wouldn’t be disqualified for testimony since he realizes the challenges of earning a living.

The Shulchan Aruch, who follows the Rambam, and considers the problem of gambling to be associated with theft, follows his own opinion (c.m. 370:3) where he writes that one who gambles with gentiles would not be in violation of theft (since only actual and direct theft is forbidden from a gentile, but not when he loses in gambling and agrees to give the money). Rashi would certainly not make this distinction and would hold that even one who gambles with gentiles would be disqualified to testify. Even according to the Rambam, the Shulchan Aruch frowns upon gambling and writes: However, it is forbidden to occupy oneself with matters of vain, for a person should only occupy his time with wisdom and matters that benefit the general welfare of the public.

Rules of the Game and the
Rules of Life

By: Meoros HaDaf HaYomi

Rabbi Nachum of Stepinesht, the son of Rabbi Yisrael of Ruzhin, once entered his beis midrash during Chanukah and saw some chasidim playing checkers. Seeing their Rebbe, they were taken aback, but Rabbi Nachum approached and asked them, “Do you know the rules of the game? Now listen carefully:
1) You give one piece to get back two.
2) You mustn’t avoid your move.
3) You mustn’t make two moves with one turn.
4) Go forward, but never backward.
5) When you get to the top, you can go anywhere (Rav S.Y. Zevin, Sipurei Chasidim al HaMo’adim, p. 267).



The Gemora rules that one may be matmin (insulate) a cold food or drink on Shabbos. The Shulchan Aruch (Orach Chaim 257:6) clarifies that one may only do so when the insulation does not add heat (eino mosif hevel), and his whole purpose of doing so is to ensure that the item will not become too cold. If however it does add heat (mosif hevel), then it is forbidden to insulate it even prior to Shabbos.

In generations past, in order to keep the cooked food warm once it was taken off the fire, it was insulated. Although there isn’t any issur melachah with hatmanah per se, the Chachamim nevertheless forbade it so as not to violate the issur of bishul in the event that before the insulation he would find that the item cooled off and then he would return it to the fire. Therefore one may not do hatmanah on Shabbos even when the insulation is not mosif hevel (ibid 257:1).

The Chachamim additionally forbade insulating an item in a place where it’s mosif hevel even before Shabbos. The reason being since in the times of the Gemora the ideal place for mosif hevel was in the ash next to the fire, and he might come to stir the ash on Shabbos to heat up the insulated food, thereby violating a form of mavir (ibid).

Reb Moshe Feinstein (Igros Moshe Orach Chaim 4:74 - Hatmanah) explains that it is forbidden to insulate an item in a manner of mosif hevel even early Friday morning. [One cannot infer that Reb Moshe held that there isn’t any problem of hatmanah if it was insulated before Friday, since the question he was addressing was regarding Friday morning. On the contrary, it is pretty clear from his wording that it would be forbidden to do so no matter when it was insulated.]

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Sunday, March 07, 2010

Choosing Judges; Sitting with Judges and Table Manners

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The Tur writes that any judge who knows that a different judge is a thief or otherwise evil should not sit in judgment with him. And this is how the pure-minded people of Yerushalim conducted themselves. They would not sit in judgment unless they knew who was sitting in judgment with them.

The Perishah asks that the Tur’s language is not precise, for it would seem from his words that the pure-minded people of Yerushalayim would not sit in judgment except with people whom they knew to be thieves or evil!? And behold, in truth, they would not sit with people about whom they were even uncertain about their character! The Rambam’s language, however, is more precise.

The Perishah explains the Tur as follows: There is a strict prohibition against sitting in judgment with someone who is known to be a thief or otherwise evil. This is not merely pious conduct, but rather, it is something which is forbidden to do. There is a level higher than that, and that is not to sit in judgment with people that you are unsure about. This is how the pure-minded people of Yerushalayim would conduct themselves. Even if they did not know for certain that the other person was evil, they still, as an act of righteousness, would not sit with them.

The Bach reaches a slightly different conclusion. He states that an ordinary person should not sit with others in judgment only if he knows that they are evil; however, if he does not know, there is no concern whatsoever. However, prominent people, such as the pure-minded people of Yerushalayim, they should not sit in judgment with others unless they are certain as to their character.

The Aruch Hashulchan writes l’halachah that since we can presume that all Jewish people have a fine character, there is no reason to assume that someone is a thief, and therefore, there is no prohibition against sitting in judgment with someone that you do not know. It is regarded as “hiddur” to be wary of such people.

The Shvus Yaakov holds that if one of the judges does not know the other two, he should not sit in judgment with them; however, if two of the judges know each other, but they do not know the character of the third, there is no prohibition against sitting in judgment with him, for the majority of the Beis Din is proper. This is the case that the pure-minded people of Yerushalayim were strict about; they were extra careful even if it was only one of the judges that they were uncertain about.

Each Litigant Chooses a Judge

By: Meoros HaDaf HaYomi

Our Mishna addresses one of the basic rules pertaining to a beis din: One litigant chooses a dayan, the other chooses another and both dayanim choose a third. The rule applies to financial or property cases and describes the method of composing the required beis din of three dayanim. Nonetheless, the rule is characterized by a serious lack of clarity. The Panim Meiros already protested several hundred years ago: “I have seen a scandal in our generation regarding this rule: Each litigant first explains his claims to the dayan he chooses and, moreover, promises him a certain amount if he acquits him…and justice becomes distorted and the light of the Torah is extinguished and the name of Heaven is profaned” (Responsa Panim Meiros, II, 159).

Those learning the beginning of Sanhedrin may wonder: We are told, after all, that three dayanim may judge a defendant against his will (Tosefos 5a, s.v. Dan), so how can the above rule be applied? Anyone may summon another to a beis din and the defendant, willingly or not, must accept the judgment of that beis din. This question caused the misunderstanding that a beis din of which two dayanim are chosen by the litigants lacks the authority of an ordinary beis din. Furthermore, each litigant tries to choose a dayan he has known well and before the hearing he sets forth his claims to convince him to agree with him even though the dayanim are forbidden to hear only one side.

The Rishonim (Chidushei HaRan, Hagahos Ashri) explain that a beis din may judge a defendant against his will only if he refuses to appear for a din Torah. If, however, he agrees to appear, each litigant chooses a dayan and the two dayanim then choose a third. Still, asserts the Rosh (#2), we should not think that the dayanim chosen by the litigants are meant to act in their favor. Rather, the possibility to choose dayanim is intended to perfect a true verdict as each dayan presents every possible claim to justify his litigant that would otherwise escape the attention of the beis din. Hearing all the claims, the beis din can then issue a true verdict. The Rosh adds that if a litigant insists on appointing an unsuitable dayan, the beis din ignores his request and forces him to be judged by themselves or by a beis din they appoint. In other words, the rule of litigants choosing dayanim is not meant to effect any kind of arbitration. A beis din chosen by litigants has full authority and its dayanim must be as qualified as any others.

Despite all the above, the Remo asserts (C.M. 3:1) that wherever there is a regular, established beis din, a defendant must not refuse to be judged by them or demand to choose his own dayan. The Acharonim explain that the Remo refers to towns whose residents have accepted the authority of certain dayanim as a permanent beis din with no conditions. This acceptance of authority excludes any permission to refuse to be judged by them (Tosfos Yom Tov on our Mishna; Aroch HaShulchan, ibid, 2). In our era HaGaon Rav Moshe Feinstein zt”l referred to the city of New York (Responsa, C.M. 2:3) and ruled that the residents had not appointed permanent dayanim, “especially being that there are many rabbinical associations which have never convened to jointly appoint even one dayan; if a litigant wants to choose his own dayan, we must therefore obey his wish.”


Table Manners

The Gemora mentions that the pure-minded people of Yerushalayim did not enter to eat a meal unless they knew who would be eating with them. Rashi explains that it was considered degrading for a Torah scholar to eat with an unlearned person.

The Be'er Heitiv (Orach Chaim 170 s.k.) cites Mateh Moshe who holds that this halachah applies even by a seudas mitzvah. The Biur Halachah cannot find a source for his ruling, and notes that we don't refrain from doing so. Furthermore, he maintains that even the Mateh Moshe would agree in an instance where there is a benefit for the participants when a talmid chacham enhances a seudah with his presence, then, he may do so. Also it is possible that the Mateh Moshe would concur that a talmid chacham may participate in a regular seudas mitzvah, if a) there are other talmidei chachamim there as well, or b) if he is sitting by himself (he deduces this from the above mentioned Rashi who states that it is g’nai for a talmid chacham to sit next to an am ha'aretz at a meal).

The reason for this halachah is because a talmid chacham eats in a more refined manner than the am ha'aretz. This is not simply a matter of finesse, rather, there are explicit halachos that are mentioned in the poskim (aside from the halachos that the Shulchan Aruch in siman 170 speaks about), on how to conduct oneself during a meal.

A small sampling:

1. Talking while eating is discouraged (Mechaber ibid 170:1).
2. The proper amount to eat at a time is less than a k'beitzah (ibid 170:7).
3. When drinking, the entire cupful should not be consumed in one gulp, rather it is proper to finish it in two swallows (ibid 170:8).
4. It is improper to take a bite out of the food and then leave it on the table (ibid 170:11).
5. One should not eat or drink while standing (Be'er Heitiv ibid citing Rokeiach).
6. It is proper for the host to show the guests where the restroom is (M'kor Chaim).
7. One should not lick his fingers during eating (Rokeiach).
8. It is impolite to wolf down the food, rather, eating should be done slowly (Ben Ish Chai).

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Matchmaker, L'chaim and Bas-sheva

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The Gemora discusses the process of matching a man and woman together for marriage, and states that for the first match, a heavenly voice proclaims who will marry whom, while for a second match, the process is as difficult as the splitting of Yam Suf. Rav says that the heavenly voice announces forty days before the forming of a fetus, “The daughter of So-and-so will marry So-and-so.” The Ran explains that this at the point of conception, since an embryo is halachically considered a fetus at forty days from conception.

The Maharsha (Sotah 2b) says that the voice comes out at the time of the husband’s conception, which is why the wife is referred to only as the daughter of someone, and not by name.

Tosfos (22a Arbaim) states that through prayer, one can modify the match that he gets, even in his first match.

The Chasam Sofer (7:34) writes in the name of the Arizal that the “first match” referred to is not necessarily a first marriage. When a soul is created and placed in the world, it has a matching half in someone of the opposite gender. This match is the first match. As the person grows up, they develop, sometimes positively, and sometimes negatively. When they marry, their “first match” may not still be appropriate for who they have become, necessitating a “second match,” based on their actions since birth, and this match is the more difficult one.

The Gemora brought a braisa, in which Rebbe said that although a Kohen who does not know his rotation week should never drink wine, he is allowed to by dint of his problem. Rashi explains that Rebbe is not concerned with the imminent rebuilding of the Bais Hamikdash. Therefore, Rebbe is saying that destruction of the Bais Hamikdash, which led to the problem of not knowing the rotation, also is the solution which allows them to drink nowadays.

Tosfos Harosh says that Rebbe is saying that a decree that a Kohen can never drink wine is too onerous. Therefore, the problem of not knowing which rotation he is in, also leads to the untenable situation, which therefore allows them to drink wine.

The Rambam (Bias Mikdash 1:7) rules that a Kohen who does know which rotation he is in may not drink wine during his week, even nowadays. This seems to follow the Tosfos Harosh, who says that the license to drink is only for someone who would otherwise never drink.

The Raavad rules that all Kohanim may drink nowadays, which seems to follow Rashi, who says that the license to drink is due to the absence of a Bais Hamikdash, which applies to all Kohanim.

The Shulchan Aruch (OH 128:38) rules that a Kohen who drank a revi’is of wine may not bless Birchas Kohanim, since it is a form of service. The Gemora (Taanis 26b) states that we therefore do not say Birchas Kohanim at Minchah, since it is after a meal, at which the Kohen may have ingested a revi’is of wine. This concern also is the rationale behind the custom in some congregations to shift the Birkas Kohanim on Simchas Torah to Shacharis, lest the Kohanim drink a revi’is of wine after the reading of the Torah, before Musaf.

Bas Sheva or BasSheva?
By: Meoros HaDaf HaYomi

HaGaon Rabbi Chaim of Volozhin wondered if one should write the name Bas-Sheva in a get as one or two words and he asked his mentor, the Vilna Gaon. The gaon told him that “I have supported my foundations on 13 words” (from the selichos prayers). Rabbi Chaim then remembered our Gemora in which Rashi remarks that the above verse contains thirteen words (s.v. Kinechah). Counting the words, though, he found fourteen! The only solution, then, is that Bas-Sheva should be written and counted as one word (Kol Eliyahu in the name of Emunah Vehashgachah).


Mentally Preparing for Shemoneh Esreh
The Gemora mentions in passing that according to one explanation, the verse of “Shivisi Hashem l’negdi samid” teaches us that when one davens, he should visualize that the Divine Presence is in front of him. The Shulchan Aruch (Orach Chaim 98) writes an entire siman on the topic of realizing that one is talking to Hashem and how we should approach the mighty concept of tefillah.

First of all when davening, we must concentrate on the explanation of the words that our mouths are saying. Mishnah Berurah stresses that one must understand the simple meaning, and not delve into the esoteric depths of tefillah, and furthermore, all the mental preparations that are required, should be done before one starts Shemoneh Esreh, for during davening, one must solely focus on the simple translation.

One must expel all of his thoughts until his mind is clear, and he should meditate as to what amount of meticulous preparation he would put in when speaking before an earthly king, how much more so when speaking to Hashem. If a thought does enter his mind during davening, he should wait quietly until the thought goes away. The Mishnah Berurah cites an interesting She’lah who states that as a segulah not to be interrupted with other thoughts during tefillah, before davening. one should say the pasuk “Lev bara li Elokim v’ruach nachon chadash b’kirbi” three times, and each time he recites it he should pass his right hand over his forehead. If thoughts enter during davening, he should do as the above; just instead of reciting the verse out loud, he should think it in his mind.

The Rema adds that before davening one should ponder the greatness of Hashem and conversely the smallness of man.

One must daven as a poor person pleading for mercy, slowly enunciating each word. One must make sure not to daven in a way that it seems that he can’t wait to finish. Mishnah Berurah points out that one must be exceedingly careful in this regard, since there are poskim which hold that if one davened in such a manner he must daven again. Although we don’t rule in accord with these poskim, it shows the severity of not davening properly.

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Superstition and Gazing at Women

Ulla says: A dargash bed is a bed of good fortune.

The Rishonim ask: Shouldn’t such a bed be forbidden on account of the prohibition of nichush; One should not act upon the basis of omens or lucky times (Vayikra 19:26)?

The Radvaz answers that it is being used as a sign to strengthen one’s luck, but not to be superstitious about it. R’ Eliezer MiMitz disagrees with him and maintains that even that would be forbidden.

The Shitah Mikubetzes explains that this is a bed designated for the guardian angel of the house. It was done for the purpose of honoring the Holy One, blessed is He. This is similar in the manner that we prepare a chair for Eliyahu Hanavi by a bris milah.

The Ra”n in Sanhedrin explains that it is a bed which is constantly made and kept empty in order to demonstrate that the household has more than they need. Through this, one is recognizing that Hashem has blessed him with wealth and thanking Him for it.

The Rambam writes that dargash is a small bed that is placed before a larger bed; it is used as a stepping-stool in order to climb onto the higher bed.

The Rosh explains that the angel in charge of poverty resides in a dirty house and the angel in charge of riches and success resides in a clean house. The dargash is a bed which always remained clean in order to beckon the angel of wealth to reside in the house.

The Wisdom of Rabbi Yehonasan

By: Meoros HaDaf HaYomi

And he may break through property to make a way for himself.

Rabbi Yehonasan Eibschitz was familiar with the royal family. Once the king was about to enter the city and to test Rabbi Yehonasan’s wisdom, asked him to guess the gate through which he would enter. Rabbi Yehonasan replied that he would put his answer in writing, to be opened only after the king’s entry to the city. The king thought of a trick and broke through the city wall, making a new gate and imagining that Rabbi Yehonasan could never foresee such a ploy. After his arrival, the reply was opened, showing the excerpt from the Mishna: “…the king may break through property to make a way for himself.”


Gazing at Women

The Gemora records a dispute between the Chachamim and Rabbi Yehudah regarding where the women stand when attending a funeral. Chachamim are of the opinion that they may stand both in front and behind the coffin, while Rabbi Yehudah maintains that they may only stand in front.

Tosfos explains that since when attending a funeral it is a time of anguish, we are not concerned that the men will see the women and have illicit thoughts, therefore we allow the women to stand in front of the coffin while the men are behind them. However, Tosfos continues that there are those who have the custom to position the men in front of the coffin and the women behind it, for it is improper for the men to gaze at the women.

There are many things men are forbidden to do, so as to distance themselves from immorality. Obviously these laws do not apply to one’s wife. Due to the severity of these laws and the fact that it is unknown to many people, these halachos will be a bit explicit.

It is forbidden to:

1) Wink, snap the fingers or any other bodily movement that is considered flirting.

2) Joke around with a woman, or to act in a light-hearted manner.

3) Gaze at her beauty. This also applies to an unmarried girl.

4) Smell the perfume that a woman is wearing.

5) Gaze at the clothing of a woman that one knows, even if she is not wearing it at the time.

6) If one is walking down the street and a woman is walking in front of him, it is forbidden to continue to walk behind her; rather, he should quicken his pace and get in front of her. If this is not possible, then he should either go to the side or wait until she is sufficiently ahead of him. There is a dispute as to how much of a distance needs to be between them. Mahari and others hold that it is enough if a man is four amos behind a woman, while the Radvaz rules that one must distance himself until he can’t clearly see her walking and movements. This applies even where ladies go covered from head to toe.

7) Pass the house of a prostitute.

8) Gaze at any part of a woman’s body.

9) Listen to a woman singing.

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Freezing Mikvah and Returning a Lost Article

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The king or the Kohen Gadol may not be members of the Beis Din involved with the intercalation of the year The king cannot on account of the upkeep of his army (since they are paid annually, he might wish to make a leap year in order to save money). The Kohen Gadol cannot because of the cold the following year (since he might be against intercalation of this year, for if the year is extended, Yom Kippur, being a month later, will be colder, and it will cause him distress during his five immersions on that day).

Tosfos asks from a Gemora in Yoma (31b) which states that if the Kohen Gadol found it difficult to immerse in a cold mikvah, iron bars were heated prior to Yom Kippur and placed into the mikvah to warm it up!?

Tosfos learns that the Kohen Gadol would be cold from the floor of the Beis Hamikdash, since he performed the Temple service while barefoot.

The Margoliyos Hayam answers Tosfos’ question by saying that the Mishna is Yoma states that they would only do that if the Kohen Gadol was finicky or elderly; otherwise, it would not be done for him. Accordingly, a healthy Kohen Gadol would not want the year extended.

Alternatively, he answers based upon Reb Akiva Eiger, who asserts that this allowance was not permitted for his first immersion on Yom Kippur, since that did not take place in the sanctified part of the Temple; rather, it was done outside. The Rabbinic prohibition against throwing a heating element into the cold mikvah was only permitted in the Mikdash (based upon the dictum of “ein sh’vus ba’Mikdash). Accordingly, the Kohen Gadol would not want the year extended, for there was no way to avoid the cold water of the first immersion.


When is One Exempt from Returning a Lost Item

The Mishna had stated: The Kohen Gadol may testify and others may testify about him

The Gemora asks from a braisa: And you will look away. This teaches that sometimes one looks away (from returning a lost article), and sometimes one cannot look away. What is the case? If a Kohen saw a lost object in the cemetery, or an elderly man saw an object that it was not honorable for him to carry, or if his work is more valuable that the lost object of his friend, this is why it says: And you will turn away from them. [Seemingly, it should not be respectful for a Kohen Gadol to testify on behalf of a common person!?]

The Shulchan Aruch (Choshen Mishpat 263:1) clarifies that even a young Torah scholar, or a well respected person (Aruch Hashulchan), is exempt from returning a lost item which is below their dignity to deal with, for example a bale of hay.

Although they are usually exempt from returning a lost item that is beneath their dignity to deal with, they will be required to do so if they actually moved or picked up the item, since they started the mitzvah (ibid 263:2).

The Shach directs us to a halachah (in 261:2) where the Shulchan Aruch rules that if one found an animal grazing in someone else’s vineyard or field, then he is obligated to return it, because the animal is damaging that property. This is termed aveidas karka (in other words, the owner of the vineyard is being caused a loss, so the person seeing the animal grazing has an obligation to return it to his owner, so as not to cause a loss to the owner of the field).

At first glance it is difficult to see the apparent connection. Rabbi Akiva Eiger explains that the Shach is proving that since the Shulchan Aruch does not state that he should just simply move the animal to a ownerless field, that shows that once he moved the animal he is obligated to return to its owner. However, the Or Zerua cites Ritva who disagrees and maintains that it is enough if he merely moves it to an ownerless field.

The Shulchan Aruch (ibid 263:3) rules that if the these people want to go beyond the call of duty and lower themselves to return the lost item, they may do so. The Rema disagrees, and quotes Rosh that the most such people are allowed to do is to pay the owner for the lost item.

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A dayan who says he doesn’t know is regarded as absent.

Our Mishna and Gemora explain that the decision of a beis din is determined according to the majority opinion of the dayanim. The initiator of the method of study practiced in yeshivos, HaGaon Rav Chaim Soloveichik of Brisk zt”l, offered a logical explanation as to why a majority opinion suffices to rule a decision. As stated in the first Mishna in Sanhedrin, financial or property cases are judged by a beis din of three and cases involving a death penalty require a beis din of 23. How, then, can a beis din rule a decision according to the majority opinion if the minority of dayanim objects? In such an instance, the beis din lacks the needed number of dayanim to judge the case! Moreover, we may ask an even more serious question: We have the rule that “the majority is not a determining factor in financial and property cases” so how could they ever be ruled according to a majority of dayanim? (Tosefos, Bava Kamma 27b, s.v. Ka mashma lan).

Rav Chaim then explains that the term majority has two definitions. Sometimes we follow the majority to decide a doubtful case. On the other hand, we sometimes have the definition of “the majority is like all.” A shochet, for example, must cut through certain parts in an animal for the shechitah to be kosher, but if he cuts through most of them, his shechitah is kosher as, in this case, “the majority is like all” and the minor part is also considered as “shechted.” Similarly, when the Torah says, “Decide according to the majority (of dayanim)” (Shemos 23:2), it means we should regard the minority as actually becoming part of the majority and arriving at the same decision and we then have an entire beis din – of three or 23 – with one ruling. (Chidushei HaGaon Rav Chayim al HaShas, p. 127 – see there that this applies to the verdict; the assumption that they reached a correct decision is based on the rule to follow the majority in a case of doubt.)

The concept of “the majority is like all” is constantly expressed in daily life. We must, for instance, choose myrtle branches (hadasim) with clusters of three leaves but if a hadas is mostly covered with such clusters it is kosher for the mitzvah as “the majority is like all.” By the same reasoning, sechach does not have to entirely prevent the penetration of sunlight in a sukkah: it suffices if the sechach creates more shade than sunlight. In his Kehilos Ya’akov (1:2), the Steipler Gaon, HaRav Yaakov Kanievski explains that this halachah stems from the aforesaid rule and, indeed, such a sukkah is regarded as entirely shaded by kosher sechah.

Why don’t the Jews follow the majority of the world?

We conclude with the reply of Rabbi Yehonasan Eibschitz zt”l to a priest who asked why the Jews don’t follow the majority of the world even though the Torah commands us to “decide according to the majority.” Rabbi Eibschitz explained that the command applies only in the case of a doubt. As to their faith, however, Jews have no doubts and in such matters have no reason to follow the majority.

A Rabbi Is Better Than a Doctor

A Torah scholar must not reside in a town lacking any of these ten things.

A poor Lithuanian town lacked both a rabbi and a physician and the community disagreed as to whether they should hire a rabbi or use their meager budget to employ a doctor. Rabbi Yaakov Kaminetzky zt”l heard the different opinions and ruled in favor of a rabbi since, as our sugya explains, a rabbi knows that one mustn’t live in a town without a doctor, whereas a doctor would not demand the presence of a rabbi… Indeed, Rabbi Kaminetzky obeyed this principle. Upon his appointment as the Rabbi of Tzitivan, he discovered that the town lacked a physician. He troubled to find a medical book in Russian and devoted a whole night to its study. Stories were later told about his medical expertise resulting from that night (Rabbi Yaakov, 130, 139).


Adding More Dayanim to a Beis Din

After Beis Din listens to all the claims from the litigants, and any testimony from the witnesses, they send everyone out of the room and precede to deliberate the case. If they all agree as what the halachah should be, well and good, but if they don’t then they follow the majority opinion (Choshen Mishpat 18:1).

In instances where either; a) one dayan says chayav and another says zakkai, while the third abstains from stating an opinion because he doesn’t know, or b) even if both dayanim agree what the ruling should be, but the third does not know what to rule, then two more dayanim are added. Now that there are five dayanim they deliberate once again, and if there is a majority opinion either way, then that is what the ruling would be. If however the same scenario repeats itself that there is an equally divided opinion and the fifth does not know, then an additional two are added (ibid).

It is interesting to note that if there would be a similar case as example b above, where three dayanim rule one way while the fourth disagrees and the fifth abstains, or if four dayanim rule one way and the fifth abstains, then we follow the majority opinion. Even though earlier such an instance would cause us to add more dayanim, here it is different. The difference is because in order to follow the majority opinion of a Beis Din, there obviously needs to be a Beis Din in the first place, and that can only happen when there are at least three opinions. Therefore in the case of three alone, then more dayanim need to be added in order to follow the majority, while in the instance where more were already added, then there are already three that gave an opinion, so we may follow the majority (S’ma ibid).

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Harp and the Northern Wind; Tikkun Chatzos

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The Mishna had stated: A voluntary war (if they are not waging war against the seven nations that were occupying Eretz Yisroel) requires a Court of seventy-one.

Rabbi Avahu said: It is written: And before Elozar the Kohen he shall stand [and Elozar shall inquire for him by the judgment of the Urim before God; by His word shall they go out (to war) and by His word they shall come in from war, both he and all the children of Israel with him and all the congregation]. He refers to the king (Yehoshua); and all the children of Israel with him refers to the Kohen anointed for war; and all the congregation refers to the Sanhedrin.

The Gemora asks: But perhaps the verse is teaching us that it is the Sanhedrin (or king or the Kohen anointed for war) whom the Torah tells to inquire of the Urim ve’Tumim (but the Sanhedrin do not need to be consulted before going to war)!?

Rather, it may be derived from a verse cited by Rav Acha bar Bizna in the name of Rabbi Shimon Chasida: There was a harp hanging over David’s bed and when it reached midnight, the north wind would blow on the harp and it played by itself. At that point, David would get up and study Torah until the break of dawn. After the break of dawn, the Chachamim came to him and said: “Our master, the king! Your nation Israel requires sustenance.” David replied, “Go and sustain each other.” They said back to him, “A handful cannot satisfy a lion, nor can a pit be filled up with its own earth.” He said to them, “Then go out and stretch your hand against the enemy (for plunder).” They immediately took counsel with Achitofel (as to their battle strategy) and consulted the Sanhedrin (for permission and that they should pray for them) and questioned the Urim Ve’Tumim (if they would be successful or not).

Rav Yosef said: What is the verse that states this? It is written: And after Achitofel was Benayahu the son of Yehoyada and Evyasar; and the commander of the king’s army was Yoav. Achitofel is the adviser; Benayahu the son of Yehoyada refers to the Sanhedrin, and Evyasar refers to the Urim ve’Tumim.

The Gemora in Brochos (3b) asks: And did David actually know when midnight was? If Moshe didn’t know, is it possible that David knew? [Although it is possible that David had some type of clock, and we know that such things existed in those times as is evident by the Zohar in Lech Lecho, where he mentions a type of alarm clock, which functioned through water, nevertheless, the Zohar states that it was impossible to determine the precise moment of midnight through the use of those man-made items!?]

The Gemora answers: David knew when it was midnight, for he had a sign which notified him, as Rav Acha bar Bizna said in the name of Rabbi Shimon Chasida: There was a harp hanging over David’s bed and when it reached midnight, the north wind would blow on the harp and it played by itself. At that point, David would get up and study Torah until the break of dawn.

The Mefarshim ask: If so, why couldn’t Moshe make use of a harp as well?

The Satmar Rebbe answers based on the following Yonasan ben Uziel in Parshas Yisro: On the night that the Jewish people were about to leave Egypt, the clouds lifted them up and brought them to the place where the Beis Hamikdash would be built in order for them to offer the korban pesach.

The Gemora in Yevamos (72a) states that for all forty years that the Jewish people were in the Wilderness, the northern wind did not blow for them. One of the reasons cited was because the wind would cause the Clouds of Honor to scatter.

Accordingly, it can be explained that the night of Yetzias Mitzrayim, the northern wind could not blow, for if it would have, it would have scattered the Clouds of Honor, and they would not have been able to “fly” to Yerushalayim. It was for this reason that Moshe could not determine the precise time for midnight on that night through the usage of a harp, for the harp would begin to play when the northern wind blew on it, and that night, the northern wind did not blow at all.


Tikun Chatzos

The Gemora informs us of David Hamelech’s custom of waking at midnight and learning until dawn. Today this is known as Tikun Chatzos, for that time of night is a particularly auspicious time for learning and prayer, especially to lament the destruction of the Bais Hamikdash and to pray for its speedy rebuilding.

There is a dispute among the Poskim as to when exactly Chatzos is. Without going into a lengthy explanation of the various opinions, suffice to say that the Mor Uktzia, Shulchan Aruch Harav and the Mishnah Berurah all agree that Chatzos is always exactly at midnight, meaning the halfway point between tzeis hakochavim (when three stars are seen) and alos hashachar (dawn).

Although we see from this Gemora that David Hamelech learned after Chatzos, and this would imply that we should do so as well, in regard to Tikun Chatzos, there are Achronim that hold otherwise. While the Mishnah Berurah, Kaf Hachaim and others advocate that one should learn from Chatzos and on, the Arugas Habosem held that one should learn the first half of the night, rather than the second. Similarly the Chasam Sofer writes that most people that learn at night do so the first half of the night. The Seder Hayom explains why one should rather learn the first half of the night, for the simple reason that he might find it hard to get up in middle of the night to learn, and the night would pass without him learning.

Tikun Chatzos is a great mitzvah, but it cannot come at the expense of falling asleep during davening (Elya Rabbah). Similarly, a person who is by nature made of a weaker composition and needs his sleep, he need not arise for Tikun Chatzos.

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Wild Animals and Hunting

Wild Animals
The Gemora discusses the opinions in the Mishna regarding wild animals, citing three opinions:
1. The Sages say that all animals, wild or not, are killed only if they kill, and then only in a court of twenty-three.

2. Rabbi Eliezer says that wild animals should be killed by anyone, without waiting for a court.

3. Rabbi Akiva says that only a snake should be killed by anyone, without waiting for a court, but all other animals must be killed only by a court of twenty-three.

Rish Lakish and Rabbi Yochanan differ on the terms of Rabbi Eliezer’s and Rabbi Akiva’s exceptions. Rish Lakish says these animals are only killed when they kill, while Rabbi Yochanan says that these animals are killed under any circumstances, since they are inherently dangerous.

Tosfos (15b v’Rabbi Yochanan) compares our Mishna to the Mishna in Bava Kamma (15b), which discusses which animals are presumed to be accustomed to damage, and therefore must pay full damages in all cases. The Mishna says that the Sages consider all wild animals to be accustomed to damage, while Rabbi Elozar says that they can be domesticated. However, all agree that a snake is considered accustomed to damaging. [Tosfos points out that Rabbi Elozar in the Mishna in Baba Kama is not identical to Rabbi Eliezer in our Mishna.] Tosfos asks how we can reconcile the Mishna in Bava Kamma, in which all agree that a snake cannot be domesticated and is assumed, a priori, to be dangerous, with Rish Lakish’s position in Sanhedrin, that all agree that a snake which has not killed may not be killed. Tosfos offers two answers:
1. In order to actually kill the snake, it must have proven its danger by killing someone. However, we assume any snake is potentially dangerous, and we therefore require the owner to guard the snake well, obligating him in full payment in the case of actual damage.

2. Rabbeinu Tam says that the Mishna in Sanhedrin refers to animals that were simply domesticated by training. All agree that a snake cannot be trained, and is still dangerous. However, the Mishna in Sanhedrin is referring to animals that have been restrained (e.g., by chains). Such protection is the subject of the dispute in the Mishna, and Rish Lakish’s limitation.

The Rambam (Sanhedrin 5:2) rules like Rabbi Akiva, according to Rish Lakish’s explanation.

The Rishonim point out that we rule like Rish Lakish since the Gemora brought a braisa which supports him.

The Ra’avad, however, challenges the Rambam’s ruling like Rabbi Akiva, since we generally rule like the Sages against Rabbi Akiva.

The Radvaz says that the Rambam accepted Rabbi Akiva’s special treatment of a snake, since the Mishna in Bava Kamma (15b) explicitly states that a snake is always considered in the habit of damaging.

The Rashash explains that although Tosfos distinguished between the Mishnayos, we still see in the Mishna in Bava Kamma that a snake is treated differently than other wild animals. From that case, we extrapolate to the case of our Mishna.

The Kesef Mishnah says that the Rambam ruled like the majority of opinions in each case. In the case of all wild animals except for a snake, both Rabbi Akiva and the Sages rule that a court of twenty-three is needed, while in the case of a snake, both Rabbi Akiva and Rabbi Eliezer rule that anyone should kill it. [See the Rashash for a discussion of the status of the Sages in such an analysis.]

The Noda beYehudah (Mahadura Tinyana Y”D 10) discusses whether someone may hunt for sport. He first analyzes the potential formal prohibitions, including tza’ar ba’alei chayim – causing pain to creatures, and bal tashchis – not wantonly destroying, and says that they are not applicable to such a case. However, he states that hunting for no gain (e.g., meat or hides, or for employment) is not a Torah value, with the only examples in the Torah of such behavior being Nimrod and Esav. He raises the possibility that one may hunt and kill wild animals, in accordance with Rabbi Eliezer, who says that anyone should kill wild animals, due to their danger. He rejects this on two counts:
1. This does not fit with our ruling. We rule like Rish Lakish, who limits the Mishna to a case where the animal already killed. Even under those circumstance, we rule like Rabbi Akiva, and not like Rabbi Eliezer.

2. The Mishna is only discussing wild animals who are among people, and allows one to kill them to protect the people. However, wild animals that are in their natural habitat, not threatening people, are not considered a danger to be eliminated.

Finally, he prohibits such hunting, since the sport itself is inherently dangerous, as expressed by Esav, who told Yaakov that he is going to die young, due to his sport. Although the Torah allowed one to put oneself in danger for employment, the Torah did not allow this simply for sport.


Mamon Hamazik
The Gemora explains that the difference between the Tanna Kamma and Rabbi Akiva (which at first glance both Tannaim seem to be saying the same thing; a wolf, lion etc. that killed a person must be killed by a Beis Din of twenty three), is if a snake killed a person. According to Rabbi Akiva, it is not in the same category as the wolf, lion etc. while the Tanna Kamma is of the opinion that it is.

Rashi explains Rabbi Akiva according to the Mishna in Bava Kamma (15b), where there is a dispute between the Tanna Kamma and Rabbi Eliezer whether a wolf, lion etc. automatically have a status of a mu’ad (an animal which is established after three times that it damages) or not, but they both agree that a snake is always considered a mu’ad.

The Shulchan Aruch (Choshen Mishpat 389) explains the concept, possible scenarios, and their various halachic outcomes.

Any creature which is owned by a person that damages, the owner is liable to pay. This does not apply to a slave (Tur). Not all damages are paid in full, rather, only damages that can occur when the creature does an action that comes naturally to it. For example, an animal that caused damage by eating someone else’s hay, or if it stepped on items while walking, these types of cases would require the owner to pay in full, since the owner should have thought of that natural scenario and stopped his animal from damaging. In instances where the animal damaged in an unnatural way, for example, a cow that bit someone, then he only pays half of the damages.

Therefore if an animal damages three times in the same unnatural manner, then we say that this particular thing (for example biting) became natural to this animal, so the owner would have to pay for the damages in full. This is the logic behind tam and mu’ad.

However, there are six creatures (wolf, lion etc. and snake) which the Chachamim determined are naturally inclined to cause damage, even if they are domesticated, so it will make no difference as to what specific action caused the damage, for any action it does, it will have the status of a mu’ad, and therefore the owner is liable to pay in full.

However, the Rema disagrees and is of the opinion that only a snake has an automatic status as a creature that will damage through any action, but the other five are only a mu’ad for specific actions that are natural to them, for example, a lion to be doires and a wolf to be toref, but not vice versa.

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Keep away from a Lie, Empty Vessel

Keep Far from a Lie
By: Meoros HaDaf HaYomi

The Gemora related: Rabbi Zeira used to hide himself to avoid ordination, because Rabbi Elozar had said: A person should remain obscure, for then he will live. But later, having heard yet another saying of Rabbi Elozar that one does not attain a position of greatness unless all his sins are forgiven, he himself made every effort to obtain it. When they ordained him, the people sang before him, “no eyeliner, no rouge, no braids, and yet, she radiates grace.”

A Torah scholar pleaded with Rabbi Aryeh Leib Shapira, the Rabbi of Kovno, to give him a certificate of rabbinical ordination. At first he refused but eventually gave in to the young man’s pleading and started to write the certificate. He then used the customary wording but left a long space before signing his name. “What are you wondering about?” he asked the other dayanim, “After all, the Torah says, Keep far from a lie” (Emunas HaTechiyah).

The Empty Vessel
The Gemora related: When the Rabbis ordained Rabbi Ami and Rabbi Assi, they sang as follows: Only men as these, only men as these, ordain for us, but do not ordain for us any of the “sarmitin” (rags; people who cannot provide proper reasoning for their words) and “sarmisin” (people who distort the reasons of the Torah), or as some say, “machmisin” (people who hold back from saying the reasons of the Torah) or “miturmisin” (empty-headed people).

A simple person came to the Chida for a letter of recommendation that would help him in begging from door to door. The Chida took pen in hand and described him with outstanding titles of honor, adding that had he lived in the days of the prophet Elisha, the miraculous oil would not have stopped flowing! The beggar showed the letter on his rounds and had much success. In a certain town, though, the local rabbi noticed that the mendicant did not seem to be such an outstanding scholar. Rereading the letter of recommendation, he came upon the above statement and, pondering the matter, realized the point: Elisha commanded Ovadiah’s wife to borrow empty utensils and pour the oil in them, promising that there would be enough to fill them all. When there were no more vessels, “the oil stopped” (Melachim II, 4:6) but were this person there, it wouldn’t have stopped as there would have been one more empty vessel. The Chida wanted to imply to the more discerning that they mustn’t rely on his recommendation for matters not pertaining to charity (Shivchei HaRav Chida).


Kichul, Pirkus and Serak
The Gemora mentions that when they ordained Rav Zeira, they lauded his greatness, and they expressed themselves with the same words that was used in the time of the Gemora to praise a bride, “without kichul, without serak, without pirchus, and yet she is still full of chein”, meaning that without adding any embellishments to Rav Zeira, he was still a great scholar. Rashi defines; kichul - makeup for the eyes, serak - makeup for the face, pirchus - braiding the hair. Tosfos points out that Rashi in Kesuvos (4b) learned that pirchus is really serak.

Understanding the exact meaning is not just academic, for there are halachic differences.

1) The above mentioned Gemora in Kesuvos discusses that a woman, when either she or her husband is in mourning, may not do kichul and pirchus. For a married woman this only applies during shivah (the seven days of mourning), but after that, she may do so in order that she should not be misganeh al baalah (repulsive in the eyes of her husband) (Yoreh De'ah 381:6).

2) A bride that is in mourning may do kichul and pirchus for up to thirty days after her wedding, even during shivah (ibid).

3) A girl that has reached marriageable age, and she is in mourning, may too do kichul and pirchus (ibid).

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titles for Talmudic Sages and Lo Adu Rosh

How the Talmudic Sages were Given their Titles

By: Meoros HaDaf HaYomi

Rav Acha the son of Rava said to Rav Ashi: Does one have to literally put his hand on someone’s head when giving him rabbinic ordination?

He answered: We lean on him in name only, calling him a Rabbi, and giving him permission to judge cases involving fines.

Gadol meraban shemo – “greater than raban is his name” is an expression used by many to praise an exalted Torah personality. The description first appears in a responsum from the Babylonian Ge’onim – Rav Sherira Gaon, the Rosh Yeshivah of Ge’on Yaakov, and his son Rav Hai Gaon, called the Av beis din of Yeshivas Ge’on Yaakov. They were asked to explain the titles used for the sages of the Talmud, such as Raban, Rabbi, Rav, Mar and the like, in contrast to the lack of titles when mentioning others such as Hillel, Shammai or Shimon ben Shetach. Their long and detailed responsum appears in He’Aruch, in the article on Abaye, (see also introduction of Rambam to Peirush HaMishnayos ch 7) and cites the rule that “greater than rav is rabbi, greater than rabbi is raban and greater than raban is his name alone.”The very first sages were known only by their names and therefore no titles were ever used to describe Avraham, Yitzchak, Yaakov, the prophets, the kings, the members of the Kenesses HaGedolah or the sages up to the middle of the era of the Tannaim before the destruction of the Second Temple. The title Raban became to be used for the Nesi’im in the generation of Raban Gamliel HaZaken while other sages in Eretz Yisroel were known as Rabbi. The Sefer HaYuchasin states that the title Rabbi was used to distinguish genuine sages from Sadducean imposters and since then various titles have been employed to describe our sages. On the other hand, the sages not called by their real names – such as Abaye, whose true name was Nachmeini – were left without a title (see ibid as to the meaning of the name Abaye and why he was not called by his real name). The only one of our forefathers with an added title is Moshe Rabbeinu and even then his title always appears after his name, as it is not meant to honor him but to honor us, that we had the merit that he was our rav (see Otzar HaGeonim).

The difference between rav and rabbi: Rav Sherira Gaon and Rav Hai Gaon explain that the sages of Eretz Yisroel were called rabbi whereas those of Babylonia were titled rav. Indeed, the Gemora calls Rav Zeira by that title while he was in Babylonia, but refers to him as Rabbi Zeira after his arrival in Eretz Yisroel and the Gemora in Kesuvos 43b discusses whether a certain halachah was stated by Rav Zeira, while still in Babylonia, or by Rabbi Zeira in Eretz Yisroel (according to Rashi, ibid, but Tosefos in Menachos 40b, s.v. Rabbi Zeira, disagree). Rashi (ibid) explains that the difference in titles stems from the fact that there was no traditional semichah – rabbinical ordination – in Babylonia (see Sefer HaShtaros by Rabbi Yehudah El-Barceloni, one of the first Rishonim and author of Sefer Ha’Itim).

Real semichah was eventually discontinued for certain reasons and was replaced by a symbolic semichah “so that students should adhere to the sages’ attributes and gradually advance along the levels of wisdom and its uses” (Rabbi Y. El-Barceloni, ibid). The Sefer HaShtaros (“Book of Documents”) therefore includes a “document of semichah” to authorize students to be called rav, rabbi or chacham.

An unlearned person called by a rabbinical title: The use of titles has spread since that period such that people who are not talmidei chachamim are sometimes called by the above appellations. The matter may even have halachic implications, as in the instance of a bill of divorce (get). The author of Get Pashut (129, s.k. 31, s.v. Harav) asserts that because of the proliferation of titles we must not disqualify a get in which the husband is called rav even if he lacks any Torah knowledge.

HaGaon Rabbi Akiva Eiger zt”l states that if he could, he would completely do away with titles in our era. Those who give a title to anyone, he complains, are guilty of minor flattery and those so titled might be tempted to assume false pride or dislike those giving them such titles if they think they deserve better (Preface to Responsa Rabbi Akiva Eiger).


Lo Adu Rosh

The Gemora continues to discuss the laws of making a leap year. The Gemora records a dispute between Rabbi Yehudah and Rabbi Yosi. Rashi explains the opinion of Rabbi Yosi, and an important part of the calculation, is lo adu rosh, meaning that the first day of Rosh Hashanah cannot fall out on a Sunday, Wednesday or Friday.

In the times of the Bais Hamikdash they established the length of the month based on testimony from witnesses that saw the new moon. But that all changed when Hillel made a calendar whose specific rules would allow the smooth running of the Jewish year. Each year has a set amount of months, whose length is either a 29 or 30 day month.

Every couple of years, there is a need to add an additional month in order to enable the holidays to fall in the same season each year (the seasons follow the solar year, and the Jewish calendar follows the lunar year). There is a set timeline as to which year will be a leap year. [This is known as “gu-ach adzat” – every third, sixth, eighth, eleventh, fourteenth, seventeenth and nineteenth year of the nineteen year cycle is deemed a leap year.]

According to the calendar's calculation, there are specific days which will never fall out on a given Yom Tov.

Rosh Hashana - Sunday, Wednesday and Friday.
Yom Kippur - Sunday, Tuesday and Friday.
Hoshana Rabbah - Tuesday, Thursday and Shabbos.
Chanukah - Tuesday. Incidentally, this is the reason for the custom to distribute “Chanuka Gelt” on the 5th day of Chanuka, since it can never fall out on a Shabbos (Steipler).
Ta’anis Esther - Sunday, Tuesday and Friday.
Purim - Monday, Wednesday and Shabbos.
Pesach - Monday, Wednesday and Friday.
Shavuos - Tuesday, Thursday and Shabbos.
Shiva Asar B’tamuz - Monday, Wednesday and Friday.
Tisha B’av - Monday, Wednesday and Friday.

Another calculation that manifests itself through the calendar is the correlation between two important days. Meaning the day of the week in which A falls out will always be the same day as B (i.e. the upcoming B).

The first day of Pesach - Tisha B’av.
The second day of Pesach - Shavuos.
The third day of Pesach - Rosh Hashanah.
The fourth day of Pesach - Simchas Torah.
The fifth day of Pesach - Yom Kippur.
The sixth day of Pesach - Purim (of that year)
Purim - Lag B’omer

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