[Avodah] Boray M'oray Ha'esh on Tisha B'Av

[Micha Berger]

On Thu, Sep 05, 2019 at 02:38:19PM +0300, Danny Schoemann via Avodah wrote:
> RMB:
>> Closer to our case:
>> If you daven maariv at pelag, you are not permitted to wear tefillin
>> afterward.
> 
> I'm not sure the Aruch haShulchan agrees with that. See 30:8 - " the
> Beis Yosef writes that SOME SAY that if you daven maariv at pelag, you
> are not permitted to wear tefillin afterward."

I had actually just learned 30:8* which is why that example came to mind.
Yes, he quotes it as a yeish omerim in the machaber, explaining that
it is because it would be a "tereo qolei desasrei". Then the AhS goes
on with "velachein" if he didn't daven [maariv] but the tzibbur did,
he can still wear tefillin. And then moved on to the next case. There
is no quote or explanaiton of other shitos. It seems he holds like the
yeish mi she'omer.

For that matter, the SA himself quotes the yeish mi she'omer only.
Which the Kaf haChaim says is NOT indication that others say otherwise.
Rather, that it's the mechaber's style to posit his own chiddushim with
some weaker lashon. And we can deduce from silends that the Rama
agreed with this chiddush, no?

And similarly the Taz only explains the SA and moves on.

The Kaf haChaim, though, does list the acharonim that are probably the
ones the MB tells us he is relying on.

So, I think the AhS does agree, and he is far from alone. But, it's not
open and shut, as I had thought.

Related, we hold that laylah zeman tefillin. Which the AhS says explains
that next case in the SA, someone who puts on tefillin thinking it is
day, but it is still night. He doesn't have to make a berakhah again
when day really does start.

Rather, chazal were oqeir besheiv ve'al taaseh the mitzvah of wearing
tefillin at night in a gezeira to prevent falling asleep in them.

In our case... I could see how it would explain ruling that one should
wear tefillin after maariv but before sheqi'ah. Mide'oraisa, there is
no tarta desasrei, because even if maariv is syaing it's night time,
mideoraisa there is still a mitzvah of tefillin. And miderabbanan --
it's not after sheqi'ah, how increased is the risk of falling asleep?

The MB takes lechumerah -- both on wearing tefillin and on berakhah
levatalah.

Tir'u baTov!
-Micha

-- 
Micha Berger                 I have great faith in optimism as a philosophy,
http://www.aishdas.org/asp   if only because it offers us the opportunity of
Author: Widen Your Tent      self-fulfilling prophecy.
- https://amzn.to/2JRxnDF                            - Arthur C. Clarke