The Proper Time for a Brit Mila (2) Brit Mila Performed at Night or Before the Eight Day

[For the first shiur on The Proper Time for a Brit Mila, click here.]

 

The Torah explicitly relates to the time during which one should circumcise a newborn male.

 

“On the eighth day, the flesh of his foreskin shall be circumcised” (Vayikra 12:3).

 

This week, we will continue our study of the proper time for the brit mila, and we will discuss a brit mila performed at night and a brit mila performed before the eight day. We will also discuss if there is any practical or even fundamental difference between them.

 

 

The Talmud (Megilla 20a) teaches that a circumcision should be performed during the day, as early as sunrise (hanetz ha-chama).

 

One may not read the Megilla, nor perform a circumcision … until after sunrise.  And with regard to all these activities that are supposed to be performed during the day, if one did them after daybreak, [i.e., after the appearance of the first light of the sun, even before sunrise,] they are valid.

 

The Gemara derives this law, i.e., that the circumcision must be performed during the day, from the verse: “And on the eighth day he shall be circumcised” (Vayikra 12:3). This indicates that the circumcision must be during the day, not at night. Elsewhere, the Talmud (Shabbat 142a) insists that this law is derived from a different verse, “And he that is eight days old [shall be circumcised among you throughout your generations]” (Bereishit 17:12).

 

The Rishonim question why the Talmud derives this law from two different verses. Some Rishonim (Tosafot, Megilla ibid. s.v. Di-khtiv and Shabbat ibid. s.v. Ha-hi) explain that while this law is really derived from “And he that is eight days old,” the Gemara in Megilla cites a simpler derasha. The Rashba (Megilla ibid. s.v. Ve-lo) suggests that the passage in Megilla refers to a circumcision performed after the eight day (she-lo bi-zmanah), teaching us that even a delayed brit mila must be performed during the daytime.

 

The Rishonim discuss whether one who is circumcised before the eighth day or at night must undergo hatafat dam brit. They also debate whether there is a difference between circumcision before the eight day and circumcision at night.

 

What is the halakhic status of a brit mila performed at night? The Hagahot Maimoniyot (Hilkhot Mila 1:5) notes that the Mishna (Megilla 20a) implies that if the mila is not performed during the day, it is not valid. Therefore, he rules that in this case, the boy must undergo hatafat dam brit. In other words, not only has the mohel not fulfilled the mitzva, the boy is not considered to be fully circumcised. On the other hand, the Meiri (Megilla, ibid.) writes that when a circumcision is performed at night, while the mohel has not performed the mitzva, the child is considered to be nimol, and, ostensibly, there is no need to draw blood. In addition, the Beit Yosef (YD 262) maintains that those Rishonim who rule that one who was circumcised before the eighth day does not need to undergo a hatafat dam brit would also exempt one who was circumcised at night.

 

Regarding circumcision performed before the eighth day, the Rosh (Shabbat 19:5) rules that since the child no longer has a foreskin, he is considered to be circumcised, and therefore even hatafat dam brit is not required. This is also the opinion of the Meiri (Shabbat, ibid.) and of the Sha’agat Aryeh (53), who rules that although the mitzva has not been fulfilled, drawing blood cannot rectify the improperly performed circumcision. R. Moshe Isserles, in his Darkhei Moshe (Tur YD 262), suggests that a circumcision before the eight day may be “better” (adif) than one performed at night. In Shulchan Arukh, he rules that if the circumcision is done before the eighth day, he “has fulfilled his obligation” (yatza). We will return to his position below.

 

Why is hatafat dam brit required in some cases and not others, and can one distinguish between a circumcision performed before the eighth day and one performed at night? Seemingly, this question may depend upon a number of issues.

 

1. What is the nature of brit mila?

 

This debate may depend upon a broader question regarding the nature of the mitzva of brit mila: Is the focus of the mitzva the totza’a (result), i.e., that the child is circumcised, or the ma’aseh (act) of circumcision? The Meiri appears to believe that the mitzva is to be nimol, and although technically the mitzva has not been fulfilled if the mila was performed at night or before the eighth day, since the result has already been achieved, there is no further value in drawing blood. The Hagahot Maimoniyot, however, may believe that although the child is nimol, the ma’aseh mitzva can still be fulfilled through the symbolic act of hatafat dam brit.

 

 

As we saw in a previous shiur, some Rishonim and Acharonim imply that there is a separate, independent obligation of hatafat dam brit, derived from verses and mentioned by some Rishonim. We might suggest that in these cases, although there is no longer a foreskin and the child is considered to be nimol, there is an additional requirement to draw blood. Therefore, for example, the Hagahot Maimoniyot may believe that while the mitzva of mila may no longer be performed, there may be an additional requirement to draw blood, dam brit.

 

3. What is the status of the night and the first seven days regarding brit mila?

 

Is the night or any day before the eighth day considered to be the zman mila, even though technically the mitzva cannot be performed until the eighth day, and during the daytime? Does one who circumcises a child during these times actively abrogate the positive commandment of circumcising a child?

 

R. Yosef Babad (1800–1874, Minchat Chinnukh 2), discusses whether there is any halakhic prohibition to remove the foreskin before the eighth day. He notes that the Mishneh Le-melekh (Hilkhot Melakhim 10) writes that it is prohibited to circumcise a child at night. The Minchat Chinukh responds:

 

There is absolutely no prohibition, as there is no obligation to perform the mitzva before the eighth day or at night. Rather, [circumcision before the eighth day or at night] causes one not to fulfill the mitzva, but it does not amount to an abrogation of the mitzva (bitul ha-mitzva), as he is not commanded [yet] in the mitzva when its time comes, since he no longer has a foreskin… And therefore according to many opinions he does not need [to perform a hatafat dam] as he never becomes obligated in the mitzva. Therefore, I see no prohibition of cutting the foreskin before the eighth day.

 

R. Babad insists that until the eighth day, as well as at night, there is simply no mitzva of brit mila.

 

R. Moshe Feinstein (Iggerot Moshe, YD 4:47) disagrees with this analysis. He writes:

 

I wrote in this margin that this is very curious, because if this is true, that at night we assume that there is no mitzva at all, and therefore one can remove the foreskin and it is not considered to be as if he is violating a mitzva, why is one who was circumcised at night prohibited from partaking of the pesach?

 

R. Feinstein notes that one who was circumcised at night is akin to one who has not been circumcised at all, and he may eat the korban pesach. If he was never considered to be an “arel,” than why must he refrain from eating the pesach?

 

This debate, whether there is a mitzva of mila before the eighth day, or at night, despite the technical halakhic inability to perform the mila, may impact upon our question. Those who require hatafat dam brit may believe that there is a mitzva, and while there may longer be a foreskin, the mitzva was never completely fulfilled. Others, who do not require hatafat dam, may believe that by the mohel’s removing the foreskin before the proper time, the child never became obligated in brit mila, and hatafat dam, in the first place.

 

This final option may help us understand the final halakhic conclusion, especially the view of the Rema.

 

 

The Acharonim disagree regarding the halakhic conclusion.

 

The Shakh (2) and Arukh Ha-Shulchan (262:5) require hatafat dam brit in both cases, i.e., when one was circumcised before the eighth day, or at night. (The Bach maintains that hatafa should be performed without a blessing; the Taz [2] rules that one may even perform hatafat dam brit on Shabbat!)

 

The Rema distinguishes between the two cases, ruling that one circumcised at night must undergo hatafat dam, while one circumcised before the eighth day has fulfilled his obligation. This distinction, between a circumcision performed at night (262:1) and one performed before the eighth day, stimulates much discussion in the Acharonim, as we discussed in a shiur on hatafat dam brit. Finally, R. Ovadya Yosef (YD 7:24) rules in accordance with the Beit Yosef and Meiri: in both cases, no blood is to be drawn.

 

How are we to understand the position of the Rema, who requires hatafat dam brit when the circumcision was performed at night (YD 262:1) (and when performed by a non-Jew [YD 264:1]), but does not require hatafat dam brit when the circumcision is performed before the eighth day?

 

R. Yechezkel Abramsky (1886–1976), in his commentary to the Tosefta, Chazon Yechezkel (Shabbat 16:7), cites R. Chaim Soloveitchik, who offers a novel interpretation of the Rema’s view. He suggests that although technically one is not meant to remove the foreskin before the eighth day, he fulfills the obligation of hatafat dam brit even before the eight day. However, at night, one may not perform the mila, or the hatafa, and therefore, hatafat dam brit must be performed on another day.

 

 

Next week we will discuss the laws of a mila she-lo bi-zmanah (a circumcision performed after the eighth day).