Changing Mitzvah Customs

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by R. Gidon Rothstein

5 Nisan: Netziv on Changing Mitzvah Customs

Good deeds bring responsibilities as well as rewards. Halachah sometimes treats a person who performed a good deed more than once as if s/he swore or vowed to act that way always. Shu”t Meishiv Davar 2;48, dated 5 Nisan 5643 (1883), records the advice of Netziv (R. Naftali Zvi Yehudah Berlin) to a man who had good reason to change his admirable conduct.

For a long time, the man had split his tzedakah money, giving half to the charity of R. Meir Ba’al HaNes (which, Wikipedia tells me, was founded in 1796, to support Jews in Israel) and half to the poor and needy who came to his door for their Shabbat needs.

Life Happens

The man’s brother had passed away, leaving young orphans, and he had to support them, in particular to hire someone to teach them Torah and how to pray (the responsum does not explain why they could not attend a school). He wants to divert the money he’s been sending to Israel, since his bother’s children’s needs cost more than just the half he had been giving the local poor. [No one in the responsum doubts his legitimate lacks of any other way to find the money to care for his nephews and/or nieces.]

The questioner presents the crux issue as whether halachah considers the man to have ve vowed to give this money to the charity of R. Meir Ba’al HaNes, Does he need hatarat nedarimhalachic release from a vow (he has an easy justification for release, in that he had not known, when he made the vow, this need would present itself)?

Foreseen Circumstances

Netziv starts with Shulchan Aruch Orach Chayyim 568, which discusses one who has the custom to fast each of the Ten Days of Repentance [and eat at night—this custom is the reason we say selichot for at least four days before Rosh HaShanah, to make up for the four days one may not fast during the Ten Days of Repentance, Rosh HaShanah (according to the mainstream view), Shabbat Shuvah, and Erev Yom Kippur, when there is a mitzvah to eat).

Such a person may participate in the meal to celebrate a berit milah, without any need for release from the vow, says Shulchan Aruch. We seem to assume no one would want to deny themselves the chance to participate in a meal of mitzvah, putting an implicit exception into the original vow. However, Netziv thinksberit milah does not shed light on our case; babies are born often enough for us to be sure the vow incorporated the possibility.

Were the same person to encounter unexpected mitzvah eating, hatarat nedarim, release from the vow, would be necessary. Netziv gives the example of a recovering patient, who must eat to regain his/her strength; no one doubts it will be allowed, but it does require an hatarat nedarim. As a parallel, Shulchan Aruch Yoreh De’ah 214;1 requires hatarat nedarim when medical need forces someone to eat meat or drink wine during the Nine Days[He does not mean a life-threatening need, since saving lives pushes aside such issues.]

Changing Once or Changing Forever

Before we transfer those ideas to our uncle and his charity funds, Netziv draws our attention to Magen Avraham 581;12, who allowed one with a miktzat choli, a bit of illness, to eat during Aseret Yemei Teshuvahwithout release of the vow. To reconcile his view with Yoreh De’ah’s requiring it for the Nine Days,Dagul Me-Revavah (notes on Shulchan Aruch by R. Yechezkel Landau, commonly known by the name of his responsa, Noda Bi-Yehudah) suggested Magen Avraham referred to a one time deviation from custom, to deal with the illness. Magen Avraham seems to think vows included all mitzvah purposes, including unexpected ones.

Yoreh De’ah, R. Landau suggests, addressed someone who wished to set aside a custom, not suspend it during treatment. He thinks the case was of a person accustomed to refraining from meat and wine during the Nine Days who became a little ill, and decided s/he did not want to do this anymore. [Such a decision today would be more halachically problematic, I think, since the custom has become universal among Ashkenazic Jews. Shulchan Aruch still treats it as a personal choice.] To dispense with a custom, one needs hatarat nedarim, regardless of whether the current reason for abrogating it has mitzvah content.

It’s About Hatarat Nedarim

Both views seem to require release of vows for a continuing or long-term change of a custom (even to another mitzvah), such as this questioner contemplates. The man plans to return to his current practice as soon as he no longer needs to care for these orphans, but Netziv thinks he plans to change for long enough to be functionally the same as changing it permanently, and needs hatarat nedarim.

Netziv adds he likely would have ruled this way even if the children needed help only for one year (which would be a one-time switch), because we have no direct evidence the man intended to be able to change his practice should need arise. The parallels we have discussed so far were fairly widespread, such as fasting during the Ten Days of Repentance or abstaining from meat or wine during the Nine Days. Common practice gave us good evidence the custom came with the implicit permission to suspend it to fulfill a mitzvah, expected or not.

We cannot be as sure he included provisos for the vagaries of life when he started a personal practice of how to allocate his charity funds. Magen Avraham indicated as much; in his view, a person who fasts more than general practice would need hatarat nedarim, presumably because we cannot know the parameters of an individual’s custom unless he made them explicit.

Except That It’s Not Actually a Vow

Netziv has operated to this point with the simple reading of Nedarim 81, a worthy personal practice takes on qualities of a vow. The Gemara includes such customs in Bamidbar 30;3’s prohibition, lo yachel devaro, a Jew must not treat his words lightly.

Now, though, Netziv says the Gemara did not mean all the laws of vows take effect, and thinks this an example of where it’s different. For customs, he thinks any valid need allows change without formal release. To Netziv’s eye, Rosh assumed this when he read Pesachim 51b to mean a Jew visiting another place should act like the Jews of the place where he arrives, if his differing conduct would be noticeable. The goal of avoiding division and strife frees the Jews from the custom where he lived, without hatarat nedarim. Which frees our questioner as well.

Yoreh De’ah had said a change of custom required release, but Dagul me-Revavah already helped us see why, the man wanted to abandon his practice.  Our questioner, however, intends to change only for as long as the orphans need his support. True, it will be a long time, but it’s all for a mitzvah purpose. We might think to worry his time away will tempt him never to return to his old practice; Netziv thinks his demonstrated dedication to the mitzvah, which he has been doing of his own volition for years, reassures us sufficiently.

Except that Maybe He Made a Vow

The man cannot say with certainty he did not take a formal vow. The possibility of a Torah-level vow shifts our decision algorithm, tells us to rule stringently on all doubtful cases, we might as well have him find formal release from the vow.

(Netziv relates it to davar she-yesh lo matirinhalachah’s rule against accepting the nullification of a prohibited item in a mixture if there’s a way to render it permissible. With a permissible option available, Rashi explains, Chazal did not want us to rely on nullification. Here, too, since we can release this vow, why not do that?

As a second parenthetical comment, Netzviv reminds us of a debate as to how to categorize the case. Ra”n to Nedarim thought doubts about where to apportion tzedakah should be treated as monetary cases, the burden of proof on those who claim the money should go to them. For Ra”n, the man could decide to follow the views which allowed him to change the charity funds for the use of his nephews, and leave it to the charities to file suit. However, Rashba and Ramban disagree, and keep such cases in the realms of personal religious practice, which means he has to figure out what halachah requires of him).

A final complication, we generally do not release vows to perform a mitzvah. Here, since he’ll be doing a mitzvah either way, we allow it.

Ancillary Questions

As is true of many responsa, once the writer had Netziv’s attention, he threw in other questions. Let’s take just the first, whether to recite havdallah in shul before or after Kiddush Levana, the monthly blessing of the moon. Netziv says the question of how to order two mitzvot arises only when both present themselves at the same time. When one has already come to our attention, we do it and then move to the next.

He inferred the idea from Zevachim 91, which gave perhaps the most famous principle of how we order mitzvah performances, tadir ve-she-eino tadir, we perform more common mitzvot before less common ones (such as offering the daily sacrifice before a holiday sacrifice). Should the loss common sacrifice have been slaughtered for some reason, however, it becomes a current obligation, which must be fulfilled before turning to another one. We could have still offered the daily one had we wanted, by stirring the blood of the holiday one to prevent disqualifying congealing, offering the more common sacrifice, and returning to this one.

To Netziv’s mind, the obligation of Kiddush Levana does not start until people go outside (seeing the moon sparks the obligation to bless it), where havdallah is an already presenting obligation, and therefore say havdallah first.

For the fifth of Nisan, Netziv taught us about customs that turn into quasi-vows, and reasons that allow us to change or uproot them, as well as how to prioritize obligations that come our way.

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