Shiur #02: Who is Obligated in Brit Mila?

  • Rav David Brofsky
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Dedicated in memory of Rabbi Jack Sable z”l and
Ambassador Yehuda Avner z”l
By Debbie and David Sable
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Introduction
 
            On the eighth day, the flesh of his foreskin shall be circumcised. (Vayikra 12:3)
 
            The Torah teaches that a male child should be circumcised on the eight day after birth. This commandment raises an interesting question: Who is obligated in this mitzva? While the child is the “object” of the mitzva, others (the child’s father or beit din) are responsible to ensure that the child is circumcised.
 
            The Talmud relates to this issue in the context of a well-known discussion regarding the mitzvot that the father is obligated to fulfill vis-à-vis his son:
 
We learn in this mishna that which the Sages taught: A father is obligated with regard to his son to circumcise him, to redeem him, to teach him Torah, to marry him to a woman, and to teach him a trade. And some say: A father is also obligated to teach his son to swim…
From where do we derive this? As it is written: “And Avraham circumcised his son Yitzchak” (Bereishit 21:4). And in a case in which one’s father did not circumcise him, the court is obligated to circumcise him, as it is written: “Every male among you shall be circumcised” (ibid. 17:10). And in a case in which the court did not circumcise him, the son is obligated to circumcise himself [when he reaches adulthood], as it is written: “And the uncircumcised male, who is not circumcised in the flesh of his foreskin, that soul shall be cut off from his people” (ibid. 17:14). (Kiddushin 29a)
 
A three-tiered obligation emerges from the gemara: First the father is obligated, and if the father cannot or does not circumcise his son, the beit din is obligated, and when child becomes an adult (bar mitzva), he assumes the responsibility for this mitzva. The Talmud excludes the mother from the obligation of brit mila, as we will discuss.
 
            This week we will discuss the nature of the father’s obligation, the scope and nature of the mother’s exemption from this mitzva, and the role of the beit din and child.
 
THE FATHER’S OBLIGATION
 
            The Acharonim (see, for example, R. Meir Dan Plotsky, Keli Chemda, Parashat Lekh Lekha) raise the following question: Is the father actually commanded to circumcise his son, or is he responsible to ensure that his son is circumcised?
 
            Seemingly, one might suggest that this depends on the source for brit mila. The Talmud cites a verse, “And Avraham circumcised his son Yitzchak” (Bereishit 21:4), as the source for the father’s obligation. This verse may imply a direct, paternal obligation to circumcise the child son. Interestingly, the Yerushalmi (Kiddushin 1:5) cites a different verse, “On the eighth day the flesh of his foreskin shall be circumcised” (Vayikra 12:3), which may imply that the father is not actually obligated to perform the brit mila; rather, as a member of the Jewish People, he is obligated to ensure that this child is circumcised.
 
            We might also examine the language of the mishna cited above. The mishna (Kiddushin 29a) states: “All mitzvot of a son with regard to his father, men are obligated.” The Talmud explains that the mishna means: “With regard to all mitzvot of a son that are incumbent upon his father to perform for his son…” The gemara’s formulation implies that fundamentally, the mitzva belongs to the father. However, the original formulation of the mishna, along with an analysis of the other mitzvot, leaves room to suspect that this obligation can be interpreted in multiple ways.
 
            The Rishonim, in different contexts, appear to relate to this issue. For example, the Rambam (Hilkhot Mila 1:1) writes: “A father is commanded to circumcise his son, and a master his slaves.” The Rambam appears to maintain that the father himself is obligated to circumcise his son. If the father will not or cannot fulfill his personal obligation, then beit din or the son assumes the responsibility to perform the circumcision.
 
            A number of Rishonim disagree and describe the father’s relationship to this mitzva differently. Some reveal their approach to this question in the course of explaining the mother’s exemption from brit mila. The Talmud (ibid.) teaches:
 
From where do we derive that his mother is not obligated to circumcise her son? As it is written: “[And Avraham circumcised his son Yitzchak when he was eight days old] as God commanded him” (ibid. 21:4). [The verse emphasizes that God commanded] him, and not her.
 
Many Rishonim question why the mother is not exempt for the simple reason that brit mila, which can only be performed during the day, is a mitzvat aseh she-hazeman gerama (a time-bound commandment), from which women are generally exempt. Some Rishonim, such as Tosafot (s.v. oto), explain that since the mitzva can be performed each and every day after the eight day, it is not considered to be time-bound. Other Rishonim, however, suggest that the nature of brit mila may be fundamentally different than other mitzvot.
 
            For example, the Ramban (Kiddushin 29a; see also Ritva ibid.) explains:
 
One might have thought that women are only obligated from time-bound mitzvot that are personal obligations, such as tefillin… However, mila, which is for another person (le-achrini), one might say that a woman would be obligated, just as beit din is obligated to circumcise [the child].
 
In other words, the exemption from time-bound commandments applies to mitzvot that one is personally, physically obligated to perform, like tefillin. However, the exemption would not apply to a broader, general obligation to ensure that someone else performs their mitzva, and the gemara therefore brought another source for the mother’s exemption. The Ramban implies that the mitzva of brit mila belongs to the child; the father is entrusted with the responsibility of ensuring that the child’s mitzva is fulfilled. Apparently, as we will discuss later, when the child reaches adulthood, he assumes total responsibility for his mitzva.
 
            The Or Zaru’a’s son, R. Chaim Eliezer, known as the Maharach Or Zaru’a (11), writes:
 
Regarding circumcision it appears that the father is not obligated to circumcise his son with his hands, but rather to be involved and ensure that his son will be circumcised… And if the father was personally obligated to circumcise his son, or his agent, if a different person circumcised him without the father’s permission, who did not wish for him to be his agent, the child would not be considered to be circumcised and it would be necessary to extract from him a drop of blood (le-hatif mimenu dam brit).
 
He cites a passage from the Talmud (Menachot 43b) as a proof:
 
King David entered the bathhouse and saw himself naked, he exclaimed: “Woe is me! I am no longer clothed with Your mitzvot.” When, however, he remembered that he was circumcised, he regained his calm.
 
The Maharach Or Zaru’a proves from this passage that the mitzva is to ensure that that the child is no longer an “arel” – i.e., that merely being circumcised is itself a mitzva.
 
            We have delineated a number of understandings of the father’s relationship to the brit mila: The father is personally and physically obligated to circumcise his son (Rambam), or assumes the responsibility for the fulfillment of the child’s mitzva (Ramban), or that the father must simply make sure that the child is no longer an “arel” (Maharach Or Zaru’a).
 
            It is interesting to note that the Chatam Sofer (Chullin 87a, s.v. vechatav) asserts that there are actually two separate obligations: There is a special obligation upon the father to circumcise his son, and there a separate mitzva upon the entire Jewish People to ensure that other Jews are properly circumcised.
 
The Blessings
 
            This disagreement may be reflected in the debate regarding the proper blessings recited at the brit mila.
 
The Talmud (Pesachim 7b) mentions that a birkat ha-mitzva is recited before the circumcision. The Rambam (Hilkhot Mila 3:1; see also Or Zaru’a, Hilkhot Mila 107), based upon a certain understand of the gemara, writes that when a father circumcises his own son, he says, “la-mul et ha-ben.” If another person performs the brit mila, however, the mohel recites the blessing, “al ha-Mila.” Elsewhere (Hilkhot Berakhot 11:11), the Rambam explains that when one performs a mitzva for another person, the proper formula is “al,” whereas when performing a mitzva that one is personally obligated to perform, like a father who must circumcise his son, the proper nusach is “la.” This is consistent, of course, with the Rambam’s view that it is the father’s personal obligation to circumcise his son.
 
            The Meiri (Magen Avot, Inyan Ha-Shemini) records that despite local protests, the custom in his time was in accordance with the Rambam. Other Rishonim (see Rashi, Pesachim 7b, s.v. ve-hilkhata; Ran, Pesachim 3b, s.v. ve-kashya; Hagahot Maimoniot, Hilkhot Mila 3:2; Sefer HaYashar 259), however, rule that the nusach of “al ha-Mila” is always recited. This is the custom of Ashkenazim (see Rema, YD 265:2). Different reasons are given for this practice.
 
            This question may also affect the second blessing recited at the brit mila, “le-hakhniso le-brito shel Avraham Avinu” (see Shabbat 137b). The Rambam (Hilkhot Mila 3:1-2) writes:
 
[At the circumcision,] the father of the child recites another blessing: “Blessed are You, God, our Lord, King of the universe, who has sanctified us with His commandments and commanded us to have our children enter the covenant of Avraham Avinu.
[This blessing was instituted because] it is a greater mitzva for a father to circumcise his son than for the Jewish People as a whole to circumcise the uncircumcised among them. Therefore, if a child's father is not present, this blessing should not be recited. There are those who have ruled that the court or one of the people [in attendance should recite this blessing in the father's absence]. [Nevertheless, this ruling] should not be followed.
 
The Rambam (see also Yereim 402; Rosh, Kiddushin 1:40) rules that this blessing was only instituted for the father, reflecting the father’s unique obligation in brit mila. However, other Rishonim, including the Raavad (ibid.), rule that others, including the beit din or sandak, may recite the blessing.
 
            Similarly, the Rambam (Hilkhot Mila 3:3) rules that the Shehechiyanu blessing is recited by the father at the brit mila, like any other mitzva that is performed “from time to time.” The Raavia (Shabbat 289) explains that only the father recites Shehechiyanu, as the primary obligation rests upon him. Other Rishonim disagree, as we will discuss in a future shiur. Here too, whether or not the father recites the Shehechiyanu blessing may indicate whether he performs his own mitzva or is merely entrusted with the responsibility of his son’s mitzva.
 
Shelichut
 
            This question may relate to another halakhic issue: May the father appoint a sheliach (agent) for fulfill the obligation of brit mila for him? Some maintain that the father cannot appoint a sheliach to fulfill his mitzva, either because he must personally fulfill the mitzva whenever possible or because fundamentally it doesn’t really matter who performs the circumcision. Others believe that the father can and should appoint a sheliach if he does not wish to perform the brit mila himself.
 
            This question arises regarding a Talmudic passage (Chullin 87a) that relates how a certain person slaughtered an animal and another person came and covered the blood (performing the mitzva of kisuy ha-dam). Rabban Gamliel obligated the second person to pay the first person ten zehuvim because he performed the first person’s mitzva without permission. In other words, one who takes away another person’s mitzva may have to pay a fine of ten zehuvim.
 
            The Rosh (Chullin 6:8) relates a similar episode regarding brit mila:
 
It once happened that [a father] asked a mohel to circumcise his child. Another person stepped up and performed the brit mila. The mohel demanded ten zehuvim from the second person, claiming that the father had asked him to perform the brit mila.
 
The Rosh explains why he believes that the second person is exempt from paying ten zehuvim to the mohel:
 
It appears to me that the second mohel is exempt, and although the father asked the first mohel to circumcise his son, it does not become his mitzva in that if another person performs the mitzva he can claim [the ten zehuvim]. This case is not similar to the covering of the blood, regarding which the Torah says, “and he should spill [the blood] and he should cover it” – [and the Rabbis said] one who pours the blood should cover it. Similarly, if the father wanted to perform the circumcision himself, and another person [circumcised his son instead], he would be obligated [to pay], but if the father does not wish to circumcise his son himself, then all of the Jewish People are obligated to circumcise him, and through the father’s request to the mohel, he does not acquire the mitzva in that another person [who performs the mitzva] who be required [to pay him].
 
The Rosh appears to believe that if the father does not wish to perform the circumcision, the mohel does not fulfill the father’s mitzva as his agent, but rather serves as any member of the Jewish People who are obligated to ensure that the child is circumcised.
 
            Based on this Rosh, the Shakh (CM 382:4; see also Or Zaru’a Hilkhot Mila 106:5) rules that a father who is able to circumcise his son should not ask another person to perform the brit mila, as in that case he is considered to have intentionally chosen not to perform a mitzva. This is the view of the Ketzot Ha-Choshen (ibid) as well.
 
            Other authorities, however, clearly maintain that the father can appoint a sheliach to fulfill his obligation of brit mila. The Darkhei Moshe (YD 264:1), for example, insists that one may appoint a sheliach to fulfill this mitzva, “like any other mitzva.” This is also implied by the Shulchan Arukh (YD 265:9; see also Tevu’ot Shor, cited by the Ketzot Ha-Choshen cited above), who writes: “The father stands at the side of the mohel and informs him that he is his agent.”
 
            Whether or not shelichut applies may depend on the nature of the father’s obligation. If the father’s obligation is viewed as a “mitzva she-bagufo,” a mitzva that he must personally perform, then it would seem that he cannot appoint a sheliach. If, however, the father enjoys a broader responsibility to ensure that the circumcision is performed, the father may (and possibly does not need to) appoint an agent.
 
            In addition, different understandings of whether (and when) the well-known principle of “shelucho shel adam kemoto” (Kiddushin 41b) applies to the performance of mitzvot may also be significant. The commentators discuss whether and which mitzvot can be performed through a sheliach. The Tosafot Rid (Kiddushin 42b), for example, as explained by the Ketzot HaChoshen (182:1), distinguishes between mitzvot performed by one’s body (tefillin, sitting in a sukka, etc.) and other mitzvot. Others (see Kovetz Shiurim, Ketubot 253) suggest that we might distinguish between mitzvot that focus on the “impact,” as opposed to those which focus on the “action.” Interestingly, R. Chaim Soloveitchik claimed that shelichot does not apply at all to mitzvot; rather, a sheliach can only create a chalot (status) for another person. These different understandings, along with certain approaches towards the nature of the father’s obligation of brit mila, may determine whether shelichut is at all applicable to brit mila.
 
            As we mentioned above, the Chatam Sofer (Chullin 87a, s.v. vechatav) asserts that there are actually two separate obligations: There is a special obligation upon the father to circumcise his son, and there is a separate mitzva upon the entire Jewish People to ensure that other Jews are properly circumcised. Furthermore, he explains that the father’s obligation is similar to his obligation to don tefillin, which cannot be fulfilled by a sheliach.
 
When the Child Becomes an Adult
 
            The Minchat Chinukh (2:2) discusses whether the father’s obligation to circumcise his son applies only when the child is a minor or even after he becomes an adult (i.e. after his bar mitzva). He raises a number of practical ramifications, including whether the father, if he is a mohel, must be offered the opportunity to circumcise his adult son.
 
            Interestingly, the Semak counts this commandment as two separate mitzvot. He dedicates one mitzva (157) to the mitzva “to circumcise his son,” and another mitzva (289) to the child’s obligation “to circumcise himself.” Seemingly, if the child becomes an adult and is not yet circumcised, these two mitzvot overlap.
 
            Some suggest that according to the Rambam, when the child becomes obligated in mitzvot, the father’s obligation is replaced by the child’s. Indeed, the Rambam rules (Hilkhot Korban Pesach 5:5) that it is only when one’s young children (milat ketanim) are not circumcised that a father cannot participate in the Korban Pesach. Similarly, in his Commentary to the Mishna (Shabbat 19:6), the Rambam writes: “If the child grows up and reaches the age of punishments, the obligation is removed from others and he is obligated to circumcise himself immediately.”
 
            However, the Rivash (131) insists that the Rambam believes that even after the child becomes an adult the primary mitzva is incumbent upon the father. This, of course, makes sense, as the Rambam believes that the mitzva of brit mila is the father’s personal, even physical obligation. This may also be inferred from Tosafot (Kiddushin 29a, s.v. oto), who explain that the after the eight day, the father’s obligation continues uninterrupted (and it therefore cannot be considered to be a time-bound commandment). Seemingly, if the commandment fundamentally belongs to the child or if the father was merely entrusted with the responsibility of ensuring that the son is circumcised, once the son becomes obligated in mitzvot, the mitzva of brit mila certainly falls upon him.
 
The Beit Din’s Obligation in Brit Mila
 
            The beit din presumably represents the community and carries out their responsibility regarding the circumcision of the child (see, for example, Rosh, Chullin 8:8; Devar Avraham 2:1; and Sefer Ha-Mikneh, Kiddushin 29a).
 
            At what point does the beit din or the community become obligated to circumcise the child?
 
            The Rambam (Hilkhot Mila 1:2) writes that the beit din is not permitted to circumcise a child without the father’s knowledge, unless he intentionally refrains from circumcising his son. The Arukh Ha-Shulchan (YD 261:5) explains that the Rambam does not mean that the beit din can circumcise the child immediately; rather, they must wait at least a day in order to determine that the father is indeed intentionally denying his child a brit mila.
 
The Mother’s Relationship to the Mitzva of Brit Mila
 
            As we saw above, the Talmud (Kiddushin 29a) derives the mother’s exemption from the obligation to circumcise her son from a verse:
 
From where do we derive that his mother is not obligated to circumcise her son? As it is written: “[And Avraham circumcised his son Yitzchak when he was eight days old] as God commanded him” (ibid. 21:4). [The verse emphasizes that God commanded] him, and not her.
 
The gemara teaches that since the verse emphasizes that God commanded “him” (Avraham), we learn that the mother is exempt from the Biblical obligation.
 
            As we discussed above, a number of Rishonim question why the gemara did not simply assume that the mother is exempt because brit mila, which can only be performed at night, is a time-bound commandment. Some Rishonim explain that the mitzva is not time-bound, as it can be performed any day after the eight day (Tosafot, Kiddushin 29a, s.v. oto; Turei Even, Chagiga 16b, s.v. benei). Others suggest that since the father’s obligation does not relate to the act of circumcision, but rather to the overall responsibility of ensuring that the son is circumcised, it is not considered to be a time-bound mitzva (see Tosafot Rid, ibid.; Ramban and Ritva ibid.).
 
            R. Yaakov Yechiel Weinberg (Seridei Eish 3:104) suggests that brit mila may indeed be a time-bound mitzva; the gemara’s derivation teaches us that a woman is completely removed from the commandment of brit mila, and therefore should not even recite the blessing. This, of course, challenges us to understand the mother’s exemption from the obligation of brit mila.
 
            In contrast to R. Weinberg’s interpretation, the Sefer Ha-Mikneh (Kiddushin 29a) suggests that while the mother may be exempt from the “parental” obligation derived from the verse regarding Avraham Avinu, women are certainly part of the communal obligation, the beit din’s obligation derived from the verse, “Every male among you shall be circumcised” (Vayikra 17:10).
 
Is the Grandfather Responsible for the Brit Mila of his Grandson?
 
            The Rambam (Hilkhot Talmud Torah 1:2) teaches that in addition to the father’s obligation to teach his son Torah, a grandfather also enjoys a unique obligation:
 
Just as a person is obligated to teach his son, so, too, is he obligated to teach his grandson, as the Torah commands (Devarim 4:9): "And you shall teach them to your sons and your grandsons."
 
The Kesef Mishneh (ibid.; see also Shakh, YD 245:1 who cites the Maharshal) suggests that the grandfather would be obligated to hire a teacher for his grandson, just as a father must hire a teacher to teach his son Torah.
 
            R. Akiva Eiger (Mahadura Kama 42) suggests that his unique relationship between the grandfather and grandson may be expressed regarding brit mila as well. If the father is not present, the grandfather should recite the blessing “le-hakhniso le-brito shel Avraham Avinu,” as just as he is obligated to teach his grandson Torah, he participates in the mitzva of bringing the child into the covenant through the brit mila.
 
A Broader Approach to the Father’s Obligation to Circumcise His Son
 
            In addition to the various approaches, including that of the Rambam and Rabbeinu Tam, the Abudraham (Sha’ar 8, Hilkhot Berakhot) suggests another understanding of the father’s obligation to circumcise his son. Regarding the blessing of “le-hakhniso,” he writes:
 
This blessing was established because the father is commanded to circumcise his son, redeem him, teach him Torah, and to afford him a wife to marry. [This blessing] hints that from this day onwards all of these obligations are incumbent upon him.
 
This blessing is about raising a Jewish child. It therefore makes sense that since the grandfather certainly plays an important role in raising this child, it is appropriate that he should say the blessing of “le-hakhniso” if the father is not present.
 
            We may add another layer to our understanding of the obligation of brit mila and suggest that it is the father, who himself was circumcised – and, in his absence, the community – who initiates this child into the covenant of Avraham Avinu.
Interestingly, regarding the father’s obligation of mila, the Rambam (Sefer Ha-Mitzvot, Positive Commandment 215) refers to a different verse than that which appears in the Talmud Bavli or Yerushalmi: “As for you, you and your offspring to come throughout the ages shall keep My covenant. Such shall be the covenant between Me and you and your offspring to follow which you shall keep: Every male among you shall be circumcised” (Vayikra 17:9-10). This verse may imply that the father is obligated to initiate his son into the covenant through the brit mila.
 
            A similar idea may be found regarding the le-hakhniso blessing. As we shall see, the Rishonim discuss whether this blessing is a birkat ha-mitzva or a birkat ha-shevach. However, some Rishonim suggest that this blessing does not align with the familiar categories of birkot ha-mitzva and birkot ha-shevach, but is rather most similar to the “she-hakol bara le-khevodo” blessing said at a wedding. Rashi (Machzor Vitry 505) explains that the blessing is meant to publicly welcome the child into the covenant of Avraham. He describes how as the child is brought into the room, the congregation says “barukh ha-ba” and the father takes the child and recites the le-hakhniso blessing, like any other birkat ha-mitzva said before a mitzva is performed. After welcoming the child into the covenant, he is then circumcised.
 
            Similarly, the Seder Rav Amram (Seder Mila) states that when the father is not present, the entire congregation recites the le-hakhniso blessing. The blessing is not a birkat ha-mitzva or a birkat ha-shevach, but rather a public welcoming of the child into the brito shel Avrahama Avinu.
 
            Next week we will discuss who may perform the brit mila.