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</o:shapelayout></xml><![endif]--></head><body lang=EN-GB link=blue vlink=purple><div class=WordSection1><p class=MsoNormal>On 24 March 2014 21:17, Esther and Aryeh Frimer <<a href="mailto:frimera@zahav.net.il" target="_blank">frimera@zahav.net.il</a>> wrote:<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal> >In our paper we argue that for the <i>oleh’s</i> <i>berakha</i> not to be a <i>berakha le-vatala</i>, the <i>oleh</i> and <i>ba’al korei</i> must both be obligated in <i>keri’at haTorah</i> (Major Male) so that the <i>ma’aseh ha-mitsva </i>(reading >aloud) is transferred to the <i>oleh</i> who makes the<o:p></o:p></p><p class=MsoNormal>> <i>berakha</i>. Thus, a blind man may receive an aliyya and make the <i>berakha</i>, since he is obligated in <i>Keri’at haTorah</i> and the <i>ba’al korei</i> can read for him >and transfer the action to him. A women who is not obligated, may not read for others. [We do >reaffirm, however, that a woman and a minor may read for themselves.] <o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>Just as a side note, what is not clear from what you have said is how you would consider a woman reading for another woman, or a minor reading for another minor, these being equivalent obligations, but not the same as it was in the times of the Mishna.<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>>Ms. Chana Luntz correctly notes that if this analysis were correct a minor could not serve as a <i>ba’al korei</i> for others. Yet, she testifies that in many sefardic communities minors indeed <u>do</u> read for >others. Over the past few days, Dov and I have spoken to >many Sefardic Rabbis who have confirmed that this practice is indeed found in <u>some</u> sefardic communities, though it is certainly a minority >practice - not the general custom. Several of these Sefardic Rabbis were adamant that such a practice is<o:p></o:p></p><p class=MsoNormal>> forbidden.<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>I think it would be useful to take a step back and outline what seem to be the key halachic facts, which as far as I can see are agreed:<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal><b>The position of the Shulchan Aruch/Beis Yosef/Maran:</b><o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>(A). The mechanism which validates the brachos over kriyas haTorah when there is both a ba'al koreh and an oleh is due to the oleh reading along quietly with the ba'al koreh. <o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>(B). Shomeah k'oneh, while brought by a minority of rishonim as the applicable mechanism when there is both a ba'al koreh and an oleh, is specifically rejected as a valid mechanim.<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal style='margin-left:36.0pt;text-indent:-36.0pt'>(C). A blind man cannot therefore be an oleh because (i) shomeah k'oneh does not work (ie B above) and (ii) a blind man may not recite anything by heart or after the ba'al koreh (enabling the brachos) because kriyas haTorah falls into the category of torah shebichtav which is not permitted to be said ba'al peh (SH OH 139:3).<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal><b>The Position of the Darchei Moshe/Rema:</b><o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>Brings the Meharil that the custom is to call up a blind man as an oleh. In the Darchei Moshe (OH 141:1) the Rema says he disagrees with this custom, preferring the position of the Beis Yosef, but in his commentary to the Shulchan Aruch (OH 139:3)he merely brings the Meharil as saying that now is the custom to given aliyos to blind men like we give aliyos to the ignorant (am ha’aretz). Neither the Meharil not the Darchei Moshe give a reason or justification for the custom of calling up a blind man besides linking it to the am ha’aretz.<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>A number of commentators, most notably the Taz (Orech Chaim 141:3) argue that this custom of calling up a blind man is based on application of the principle of Shomea K'oneh and the rishonim (rejected by the Shulchan Aruch) who postulate this principle.<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal> I think so far this is undisputed.<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal><b>Logical Analysis</b><o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>Now let us apply some analysis. Vis a vis Maran/the Shulchan Aruch we have the following logical possibilities:<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>(a) Maran is right about (A), (B) and (C), and therefore we cannot call up a blind man. We might, but are not necessarily able, to call up a minor or have a minor be the ba'al koreh, because there could be other reasons why we do not want to do that, such as kavod hatzibbur, or kabalistic reasons or simply minhag. But vis a vis the question of the brachos said by the oleh, there is no reason not to call up a minor for either position.<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>(b) Maran is right about (A), (B) and (C)(i), but not C(ii). In this case we could call up a blind man, but not because of shomea k'oneh, but because he can either say the parsha by heart, or repeat it after the ba'al koreh. The Aruch HaShulchan advances this argument in Orech Chaim 139 siman 8 (based on the gemora in Yoma 70a).<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>(c) Maran is right about (A), (B) as well as (C)(i) and (C)(ii), but wrong in essence about (C) overall, the calling up of a blind man, as there is some other halachic mechanism that works in that case.<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>(d) Maran is right about (A), but wrong about (B) and hence (C). That is, both the mechanism of reading along quietly *and* shomea k'oneh work, the first in the normative case, and the second in the case of a blind man.<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>(e) Maran is wrong about all of (A), (B) and (C)(i). That is, his quiet reading along mechanism does not work, the only mechanism that does work is shomea k'oneh and hence you can call up a blind man, but you cannot allow a minor to be ba'al koreh when not reading for himself and similarly a woman. <o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>In order to hold as RAF/RDF do in their article, you have to hold position (e). In any other situation, the brachos are not b'vatala. And if a minor can be ba'al koreh for a gadol, then this position (e) cannot be right. However, the fact that a minor might not be able to be ba'al koreh does not necessarily support position (e), as there may be other reasons, not linked to shomea k'oneh, why one cannot or does not allow a minor to be a ba'al koreh.<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>Thus in order for the various Sephardi Rabbis and poskim you cite to actually support your position you need them to hold the following:<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>(I) a blind man can be given an aliyah (if not, then shomea k'oneh cannot be a valid mechanism as shomea k'oneh has to work for a blind man); and<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>(II) A minor cannot be ba'al koreh for gadolim, but he can for himself. If however he is prohibited from being ba'al koreh even for himself then the mechanism at work is not shomea k'oneh, but some other reason prohibiting the minor from reading.<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>Merely having numerous poskim prohibit minors from reading does not assist you if the reasons are not based on shomea k'oneh. But on the other hand, those communities that do allow minors to read for adults are in direct contradiction to your postulated halacha.<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>So I started working my way through the list of Sephardi poskim that you cite to see into which category they fall, but gave up part way, because not very surprisingly none of them really support your position. The most they generally support was that minors could not (or should not) be called upon to be ba'al koreh. For a start, any of your list who allow it b'shas hadchak by definition does not support you. Because a bracha l'vatala is, according to the dominant Sephardi view, an issur d'orisa. Were shomea k'oneh the only operative mechanism, giving rise to a bracha l'vatala where it failed, then no shas hadchak is going to permit the engagement with such an issur d'orisa. It is only if there are some other reason (a reason that falls short of an issur d'orisa) why one should not have a minor as a ba'al koreh that one might consider waiving that reason in a shas hadchak situation.<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>But that in general your list is not going to support you is not very surprising, because let's take a step back and think about what you are asking. It is certainly true that many if not most Sephardi poskim are not quite as Maran centric as Rav Ovadiah Yosef, but just let us quote what Rav Ovadiah says in his principles of hora'ah at the back of the first volume of Yechave Daat: <o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>“3. One who turns from the words of Maran left or right, behold he is mezalzel in the honour of his rabbaim, and all the rulings of Maran that he is the Mara d’atra and we accept his rulings, and they are fixed like the halacha of Moshe from Sinai, that there isn’t in them any dispute at all. And therefore one is not to rule even a stringently against Maran if he is lenient on a matter. And in any event it is permitted to be stringent on himself (privately) when he does not do this why way of a neder and he knows that the essence of the halacha is to permit.”<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>And yet you are asking and expecting all these Sephardi poskim to say that Maran is wrong, not just once, but on three counts - ie all of (A), (B) and (C) must be wrong to get to your position. And yet as I have shown above, these are not the only logical options - there are options not just of following Maran fully as in (a) (even if you do not permit minors for other reasons) but also of following positions (b), (c) or(d) all of which have Maran being wrong at least one fewer time than you need him to be. If given a choice between ruling that Maran is wrong three times, and ruling he is wrong twice or once or no times, which option do you think Sephardi poskim are going to choose?<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>>Indeed, the analysis in our paper follows the lead of<i> Magen Avraham</i> (<i>O.H</i>., sec. 282, no. 6) <o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>Now even the Magen Avraham himself does not fully support your position - stating only that one cannot call up a minor as ba'al koreh until he brings two hairs. He does not state that the reason for this is shomea k'oneh. The Magen Avraham does explicitly rely on the teshuva of the RaM Melamed, but I have unfortunately not been able to track down a copy of that teshuva (if somebody could send it to me, I would be very grateful). It may be that RaM Melamed does cite shomea k'oneh as the reason - but of course in that case the Magen Avraham should be limiting his prohibition to where the minor is not reading for himself (as you do), which he does not do. Otherwise it rather leads one to suspect that he is basing himself on other reasons - kovod hatzibbur perhaps.<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>So the fact that various Sephardi communities are choshesh for the Magen Avraham does not in itself support the idea that the only mechanism that enables bracha making by an oleh who is not the ba'al koreh is shomea k'oneh. In contrast however, those communities, and we can have debates about how extensive they are, but they clearly exist all over the world and throughout the ages, force you, unless you are prepared to exclude them from the tent of halacha and are willing to write them out of Orthodoxy, to understand that the sole halachic mechanism involved cannot be shomea k'oneh.<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>And while the situation is more acute for Sephardi poskim, because of the flat out rejection of Maran in three places, I am not convinced that even the Ashkenazi poskim, while justifying the minhag of calling up a blind man and following the Magen Avraham in not calling up pre barmitzvah minors, would be comfortable with your full rejection of the threefold position of the Shulchan Aruch, given the existence of options (b), (c) and (d).<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>For example the Mishna Brura, while citing shomea k'oneh as the mechanism being used to enable a blind man to have an aliya (OH 139:12) states in the first Biur Halacha on OH 141 (d”h l’vatala) that “it seems that the Rema does not rely on the words of the Meharil except for the matter of a blind man and an am ha’aretz that if they do not call them ever there is much shame” In contrast however but “when he is baki in reading indeed he is obligated [to read] with the Shatz since behold he already wrote himself in the Darchei Moshe that it did not seem to him the words of the Meharil but the words of the Beis Yosef that he brings in the name of the rishonim that if he is not able to read with the Shatz he is not able to be called to the Torah”. That is a pretty clear statement as to the adoption of position (d), ie that shomea k'oneh applies only in limited cases, with the Shulchan Aruch/Rosh's mechanism being the dominant one in the normative case.<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>I think if you genuinely try reading these sources without the issue of partnership minyanim clouding your mind, you will see them for what they are, halachic justifications for the slightly difficult minhag of calling up a blind man, not a substantive attack and rejection of the halachically normative positions of the Shulchan Aruch and the Darchei Moshe.<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>>In her recent post, the truly erudite Ms. Luntz makes a very novel suggestion, namely: “Even if the oleh does not actually read along (at least somewhat) in the Torah, so long as he is able to perform >the <i>ma'aseh mitzvah</i>, it can be argued that he can still >make the brachos on the basis of Rav Zera’s principle of <i>kol hara’ui l'bila ain bila makeves bo</i>.” <o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>I'm afraid I have to apologise for giving what was clearly a misleading impression, namely that this chiddush was my own. In fact it is that of the Aruch HaShulchan (Orech Chaim siman 139 si’if 7), who uses it to reject the Taz's proof (from the story regarding Rabbi Meir in the Tosephta in Megilla and the Yerushalmi (perek 3 halacha 1)) for shomea k'oneh. All I did was draw out the logical implication implicit in the Aruch HaShulchan that this could be used today to deal with those who can read but fail to do so.<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>>Such a position is problematic for several reason. <u>Firstly</u>, Rav Zera’s priniciple of <i>kol hara’ui l'bila ain bila makeves bo</i> is a <i>mahlokes</i> <i>Rishonim ve-Aharonim le-halakha </i> whether it applies <i>be-khol </i><o:p></o:p></p><p class=MsoNormal><i>>haTorah kula </i>or only where the Torah is <i>megaleh.</i> <u>Secondly</u>, Ms Luntz is suggesting is that one can make a <i>birkat ha-mitzva</i> and never actually do the mitzva – and yet the berakha would not be a <i>>berakha levatala</i> because he <b><u>could</u></b> have done the <o:p></o:p></p><p class=MsoNormal>>mitsva. So, for example, one could make a <i>le-Shev ba-Sukka</i> and never sit in it, simply because he <u>could</u> have. Or similarly, one could make <i>le->Hadlik ner shel Hanukka</i> and never light the candle; yet the <i>berakha</i> would not be <i>le-vatala</i> since one <u>could<o:p></o:p></u></p><p class=MsoNormal><u>></u> have made the <i>berakha</i>. <u>Finally</u>, the Rosh says that if the oleh doesn’t read along, his <i>berakha</i> is <i>le-vatala</i>. But why? He <u>could</u> have. The Rosh, nor any subsequent authority ever entertained the application of <i>kol hara’ui lebila</i> to keri’at haTorah.My <o:p></o:p></p><p class=MsoNormal>>brother Dov discussed Ms Luntz’s >suggestion with Rav Asher Weiss, who summarily rejected it. He posited that <i>kol hara’ui l'bila </i> only applies to <i>Dinim</i> (status) not to <i>mitsvot</i>. He even cited a Ritva to Hullin 106b where one washes his >hands for bread >and makes <i>al netillat Yadayyim</i> – and then changes his mind and decides not to eat bread. The Ritva says it is not a <i>Berakha le-vatala</i>, nor do we require the individual to eat bread, >because he actually did the mitsva action appropriate for the ><i>berakha</i>. But, says Rav Asher, had he not done the mitsva action of washing, then obviously the <i>berakha</i> <u>would</u> have been <i>le-vatala</i>, even >though he <u>could</u> have washed.<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>In defence of the Aruch HaShulchan, we could perhaps suggest that there are various hechsher mitzvos (if not part of the mitzvah itself) which do involve action. After all the oleh rises when his name is called and makes his way up to the bimah (holacha). He then usually (in the Ashkenazi tradition) looks in the Torah, kisses the spot pointed to by the ba'al koreh with his tallis, grasps the handles of the sefer and then makes the bracha, at the end he then again looks in the Torah, kisses the place pointed to by the ba’al koreh with his tzitzis. Even if in this whole process he does not catch sight of a single word that he ends up reading, he has certainly looked into the actual Torah scroll . And indeed we know (inter alia from the mitzvah of chanukah candles that you cite) mere seeing (roeh) can be enough to trigger a bracha, even without all this tzitzis kissing and marking. I would have thought that therefore the actions involved were more than enough to justify use of the principle, if the principle can be utilised at all.<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>Regarding the machlokus whether or not one can use kol hara'ui l'bila more generally, I did note that "it can be argued" - but certainly the Aruch HaShulchan there states explicitly that we can cite this halachic principle “in general”, although of course there are others who hold differently.<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>What to my mind is even more noteworthy about the Aruch HaShulchan however, is the fact that he goes to some lengths to suggest alternatives to shomea k'oneh - citing both this principle and the idea that perhaps the blind man can recite by heart. That is, one can detect here, just as in the Biur Halacha, a general discomfort regarding the use of shomea k'oneh even to support the calling up of the blind (a position he clearly supports). It is a long way from this to a position that invokes shomea k'oneh as displacing all other mechanisms as in done in the article.<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>That, I just don't think is valid. Not only because of the many frum (Sephardi) Jews over the centuries who have and continue to call up minors to read as ba'al koreh and whose practices you are attacking (and if they are not neviim, bnei neviim hem - and the fact that there are other communities that have an continue to hold differently does not mean you go out of your way to invalidate the others). But also because of the nature of the halachic dialogue itself. The blind case is an exceptional case, the justifications for it are in that context. And to then cite those justifications to argue for the incorrectness of not just one but three positions taken by the Shulchan Aruch, when at most one disagreement is required (and where the Rema himself disagees at most in one place), is chipping away at the principle that the Shulchan Aruch stands as a dividing line in the history of psak and potentially operates to weaken the authority of the Shulchan Aruch vis a vis minority rishonic opinion. And this is not a situation where we can say that the Shulchan Aruch had not seen all the evidence we see today (such as lost rishonic opinions) or that his position here fundamentally contradicts a position he takes elsewhere (which are potential ways the eg Rav Ovadiah permits to allow disagreement with the Shulchan Aruch). It is simply a threefold straight out rejection, which I do not believe is mirrored by the various achronim. I certainly do not believe this is your intention, but there are risks in undermining the psak of the Shulchan Aruch is such a straightforward fashion, and I do not believe you have in any way made the case to do so.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal style='text-align:justify;text-indent:36.0pt'>Kol Tuv<o:p></o:p></p><p class=MsoNormal style='text-align:justify;text-indent:36.0pt'> Aryeh (from home; For Aryeh and Dov)<o:p></o:p></p><p class=MsoNormal><span style='font-family:"Arial","sans-serif"'>--------------------------------</span><o:p></o:p></p><p class=MsoNormal>Regards<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>Chana<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p></div></body></html>