Tashlumim (Compensation) for a Missed Shema
TOPICS IN HALAKHA
Tashlumin (compensation) for a Missed Shema
HaRav Yehuda Amital, zt"l
R. Yosef Karo rules: (Shulchan Arukh, OC 58:7):
If one did not recite [Shema] during the day, some say that one can compensate by reciting it [tashlumin] at night. And similarly, if one did not recite Shema at night, one can compensate by reciting it during the day. Others, however, disagree.
This ruling is based on the Kolbo cited by R. Karo in the Bet Yosef (ibid.):
The Kolbo (no. 9) writes: If one erred regarding the morning Shema¸ some say that there is no tashlumin at night, and no [tashlumin] for the evening [Shema] during the day. But Rabbenu Chayyim writes that Shema is equivalent [regarding this matter] to the Amida prayer.
It should be noted that when he paraphrases the Kolbo in the Shulchan Arukh, R. Karo reverses the order of the two positions, thus indicating that he has decided in favor of the view that there is no tashlumin, since he generally rules in accordance with the position he cites last.
The source of this law is found in Berakhot 26a, which deals with compensatory (tashlumin) prayer:
Rav Huna bar Yehuda said in the name of Rav Yitzchak who said in the name of Rabbi Yochanan: If a man erred and did not say the afternoon prayer, he prays twice in the evening, and we do not apply here the principle that if the day has passed the offering lapses. An objection was raised: "'That which is crooked cannot be made straight, and that which is wanting cannot be numbered' (Kohelet 1:25). 'That which is crooked cannot be made straight' - this applies to one who omitted the Shema of the evening or the Shema of the morning or the Amida prayer of the evening or the Amida prayer of the morning. 'And that which is wanting cannot be numbered' this applies to one whose comrades formed a group to perform a religious act and he was not included with them." Rav Yitzchak said in the name of Rabbi Yochanan: With what case are we dealing here? With one who omitted deliberately. Rav Ashi said: The proof of this is that it says "omitted," and it does not say, "erred." This proves it.
While the Gemara links the Shema and the Amida prayer in this passage, the Acharonim disagree as to what can be inferred from this passage regarding Shema. The Be'er Heitev cites an objection raised by the Mishneh La-melekh (Hilkhot Tefila 3:9) against Rabbenu Chayyim [cited in the Kolbo that there is tashlumin for Shema]: "This is surprising, for the following teaching is known: '"That which is crooked cannot be made straight" - this applies to one who omitted the Shema.'" The Be'er Heitev writes that the Mishneh La-melekh raised this objection against those who maintain that there is tashlumin for a missed Shema. But the Be'er Heitev notes that the passage cited implies the opposite conclusion it limits the application of the condemning verse to a case where the omission is deliberate, with Shema being treated as equivalent to prayer. If so, the Gemara proves that there is tashlumin for a missed Shema just as there is tashlumin for a missed prayer. The Sha'arei Teshuva, on the other hand, writes that the Mishneh La-melekh's objection was raised against those who maintain that there is no tashlumin for a missed Shema, for the passage indeed proves that it is only in a case of deliberate omission that there is no tashlumin, but in a case of error there is tashlumin.
In any event, the Tzelach (Berakhot, ad loc.) understands, based on the Gemara, that there is no tashlumin for a missed Shema. He writes that his students asked: What is the Gemara's question from the verse, "That which is crooked cannot be made straight? For the Gemara states that one who says a compensatory prayer receives reward for praying, but he does not receive reward for praying in the proper time. This being the case, perhaps "That which is crooked cannot be made straight" refers to the reward for prayer in the proper time, but one might still be obligated to recite a compensatory prayer. He answers that the Gemaras question emerges from the fact that the Baraita equates prayer to Shema, thus implying that just like Shema does not have tashlumin at all, so too prayer does not have tashlumin. The Tzelach then asks: If this is the Gemaras question, then how does the Gemara's answer address it? The Gemara answers that the Baraita is dealing with a case of one who omitted deliberately, inferring this from the fact that the Baraita says "omitted," rather than "erred." But how does this address the question prayer is not similar to Shema, which has no tashlumin, even in a case of error! The Tzelach answers that since the Baraita explicitly states that no corrective can be done for prayer specifically in a case where he "omitted" the prayer intentionally, this itself implies the fact that tashlumin are possible in a case of unintentional omission. This is an adequate basis for the notion that tashlumin are possible in a case of unintentional omission of prayer, despite the difference between Shema and prayer.
It should be noted that the position of Rabbenu Chayyim that there is tashlumin for Shema has other advocates. It is also the view of the Raavya in Megilla (no. 571). And it is also the view of the Roke'ach, cited in the Bet Yosef, no. 672, regarding one who did not light candles on one of the nights of Chanuka:
And so writes the Roke'ach (no. 226, p. 128): If a person did not light one night, he may not light the next night or some other night [additional candles to compensate for] what he should have lit then [on the night he missed], for it is not similar to Shema or the Amida prayer, regarding which it was said in chapter Tefillat ha-Shachar that one recites Shema and prays again.
As for the reasoning of those who disagree with Rabbenu Chayyim and say that there is no tashlumin for Shema, the Peri Chadash writes:
It seems that the reason according to those who say that there is no tashlumin for Shema is that the Amida prayer is different; since it is [supplication for] mercy, he could pray all day long. But Shema, where this notion does not apply, there is no tashlumin.
A similar explanation is to be found in the work of the Meiri in his explanation of the first Mishna of Berakhot and in Sefer Ha-me'orot (beginning of chapter Tefilat Ha-shachar). The first view in the Kolbo, that there is no tashlumin, is based on the Mikhtam, the Orchot Chayyim of R. Aharon of Lunel (Hilkhot Keri'at Shema, no. 23) and the Sefer Hashlama. It is explicitly stated in those works that one cannot perform tashlumin for Shema because of the blessings. The Orchot Chayyim writes as follows:
If one erred regarding the morning Shema, some say that there is no tashlumin at night, and no [tashlumin] for the night [Shema] during the day, because the blessings of the morning Shema are not the same as those of the evening [Shema], and those of the evening [Shema] are not the same as those of the morning [Shema]. This is also the position of the Hashlama. But Rabbenu Chayyim, z"l, writes that Shema is similar in this regard to the Amida prayer, even though they do not have the same wording.
However, this position is difficult because the generally accepted position is that one can fulfill the obligation to recite Shema without reciting the blessings. Even according to the Tosafot (Berakhot 13a, s.v. haya kore) and Rav Hai Gaon (cited by the Bet Yosef, no. 60), that changing the order of the blessings does not prevent one from fulfilling the obligation while the blessings themselves are required, that is only true regarding a congregation, but an individual can fulfill the obligation even without the blessings themselves. It seems then that these Rishonim must maintain that the blessings are indispensable, and this is indeed how the Bach (no. 60) explains the position of Rav Hai Gaon, explaining that the blessings are necessary both for a congregation and an individual to fulfill the mitzva.
Against this background, even according to the view that there is tashlumin for Shema, further study is needed to determine the law regarding the blessings of Shema if they should be recited, which blessings are appropriate? It might be proposed that according to Rabbenu Chayyim, one always recites the blessings that are appropriate for the time of the tashlumin. This would be similar to the law regarding one who forgot to recite the Mincha service on Friday afternoon, that he recites two Shabbat Ma'ariv services on Friday night, and also to the law regarding one who forgot to recite the Mincha service on Shabbat afternoon, that he recites two weekday Ma'ariv services on Motza'ei Shabbat. The Meiri (Berakhot 26b) raises this possibility regarding Shema, but rejects it:
You might say that he should recite the blessings that are appropriate for now, like the law regarding a [missed] Friday [service] on Shabbat, or a [missed] Shabbat [service] on Motza'ei Shabbat, but there the reason is that an obligation of an Amida of eighteen blessings exists even on Shabbat, only that the honor of Shabbat pushes it aside.
That is to say, even in those cases when a different prayer is in fact recited, the requirement is the same in either case there is a requirement to recite the full Amida, but circumstances (whether or not it is Shabbat) determine whether that requirement is actualized. This is not true regarding the Shema, where the morning and evening blessings are different in principle. But this objection is not decisive, for the Rema (108:69) rules: "The same is true if one did not recite Mincha on the eve of Rosh Chodesh, that he recites two Rosh Chodesh Ma'ariv services." This ruling of the Rema, that one recites the Rosh Chodesh service twice, even though the original obligation was not for a Rosh Chodesh prayer, indicates that the recitation of tashlumin is determined based on the current situation rather than on the original obligation. Similarly, then, regarding Shema, there is room to say that when reciting a compensatory Shema in the morning for having missed the evening Shema that he should recite the blessings appropriate for the morning Shema.
Another possibility according to Rabbenu Chayyim is that when reciting a compensatory Shema for a missed evening Shema one should recite the blessings appropriate for the evening Shema. The Meiri inclines toward this position:
Regarding the text of the blessings, one may rely on the fact that they are general for the day and the night, as they said that one is to mention the distinctive feature of the day at night and the distinctive feature of the night during the day.
And he concludes:
In any case, even according to this opinion, he should recite it as a voluntary act, and not as compensation as we discussed in the first chapter.
The Bet Yosef (108) cites the Semak:
If one erred and did not recite the Arvit service, he should recite the Shacharit service twice. After reciting the morning Shema with its blessings and the [morning Amida of] eighteen blessings, he should start Ashrei, and afterwards recite [an Amida of] eighteen blessings [as compensation] for the evening service. However, he should not recite the blessings of the evening Shema.
Based on this ruling, the Peri Chadash writes: "It seems to me that the law is in accordance with those who say that [Shema] has tashlumin." And he adds: "But the blessings of Shema do not have tashlumin, and afterwards I found that the Bet Yosef (108) wrote this in the name of the Semak." This position is difficult, for those who disagree with Rabbenu Chayyim because it is there is no tashlumin for the blessings of Shema maintain that there can be no tashlumin without blessings, because the blessings are a necessary component of the mitzva. How then can the Peri Chadash conclude that there is tashlumin for a missed Shema without reciting the blessings? Perhaps he maintains that in a situation where it is impossible to recite the blessings of Shema, one fulfills one's obligation of Shema even without the blessings. Alternatively, one can explain that the Peri Chadash agrees with the Tosafot and Rav Hai Gaon that regarding an individual, the blessings of Shema are not necessary to fulfill the obligation.
Regarding the Shulchan Arukh's ruling brought above, where R. Yosef Karo brings the two opinions as to whether or not Shema has tashlumin, the Vilna Gaon writes in his commentary (end of section 58): "Nevertheless, further study is required, for what tashlumin are there here, and what prohibition is there, since it is as if he were reading from the Torah." He seems to understand that the issue in dispute is whether or not to recite Shema without its blessings, and therefore he asks, what tashlumin are there here without blessings. But that which he writes, "and what prohibition is there," implies that he maintains that the law of tashlumin is not an obligation, but an allowance, because if the time of prayer already passed, one should be forbidden to pray. And even though we rule in accordance with Rabbi Yochanan, who says: "O that a person should pray all day long," the Tosafot wrote (Berakhot 21a, s.v. ve-Rabbi Yochanan) that he must add something new in this additional prayer, whereas in a case where a person erred and did not pray, he may offer a compensatory prayer, even without adding anything.
R. Arieli, z"l,
writes (Einayim la-Mishpat, Berakhot 26a) that this matter is the
subject of a disagreement among the Rishonim. He associates the view that
tashlumin are optional to Tosafot (Berakhot 26a, s.v.
iba'aya lehu), and the view that tashlumin are obligatory with the
Earlier, we raised two possible explanations for those who disagree with Rabbenu Chayyim and reject tashlumin for Shema: 1) The blessings of the morning and the evening Shema are different and thus cannot be compensated; this is the view of the Mikhtam and the Orchot Chayyim. 2) The law of tashlumin was only stated regarding the Amida prayer which is a supplication for mercy, as is implied by the wording of the Gemara (Berakhot 26a): "Or should we rather say that since prayer is supplication for mercy, whenever one wishes, he can pray." As for Rabbenu Chayyim who says that Shema is equivalent to prayer regarding tashlumin, apparently the Gemara rejects the initial assumption that the law of tashlumin is based on the fact that prayer is supplication for mercy. For when the Gemara brings the Baraita which teaches that the verse, "That which is crooked cannot be made straight," refers to one who omitted either the Shema or the Amida prayer deliberately, with the implication that one who erred regarding either of these can make things straight the rationale of supplication is rejected. This seems to be the understanding of the Peri Chadash who explains the position of the Shulchan Arukh that Shema has no tashlumin, because tashlumin only applies to matters involving supplication, and then concludes that even Shema has tashlumin, based on that very passage.
It seems, however, that the Shulchan Arukhs ruling that there is no tashlumin for Shema is not based on the fact that tashlumin only apply to supplications for mercy, as argued by the Peri Chadash, but because the blessings of the morning and evening Shema are different. For the Orchot Chayyim writes (Hilkhot Netilat Yadayim, no. 12): "The author of the Hashlama wrote an answer to a question in the name of a Gaon: If a person urinated, and thought that he had finished urinating, and afterwards he urinated a second time, he must recite the Asher yatzar blessing twice. And he brought a proof from what the Sages, of blessed memory, said: If a person erred and did not pray the Shacharit service, he must pray the Mincha service twice. And there is no minimum measure for urination, for even for a single drop one is obligated to recite the blessing." The Bet Yosef (OC 7) brings this halakha in the name of Mahari Abuhav who cites it from the Orchot Chayyim. And in the Shulchan Arukh (7:3), he codifies this as law. The Magen Avraham and the Taz both cite the Bach who argues that Asher yatzar is a blessing of thanksgiving, and therefore one blessing suffices for any given time, and they adduce proof from Birkat Ha-mazon. In any event none of these posekim suggests that tashlumin only applies to the Amida prayer which is a supplication for mercy. The implication is that the Asher yatzar blessing may be likened to the Amida prayer, even though prayer is a supplication for mercy, and thus there should be no problem applying the notion of tashlumin to the recitation of the Shema.
The Seder Mishneh on the Rambam (Hilkhot Keri'at Shema 1:11, s.v. sham shalosh sha'ot) writes that this disagreement whether there are tashlumin for Shema depends on the disagreement between the Rambam and the Ramban whether the reading of Shema in the morning and in the evening constitute one mitzva or two mitzvot. According to the Ramban who maintains that they are regarded as two separate mitzvot, there can be no tashlumin for Shema
for what connection is there between the day-time Shema and the night, or vice versa. Surely this is like one who compensates during the [subsequent] days of Pesach for the olive-sized matza that he did not eat on the first night, which does not help at all.
Whereas according to the Rambam who maintains that they are regarded as a single mitzva, they are related to each other, and this is similar to prayer, where all three prayer services are considered a single mitzva. This suggestion is also cited in the name of Ma'ayan Ha-chokhma. In my opinion, however, it is very questionable. For it seems obvious to me that there is no disagreement between the Rambam and the Ramban regarding the essence and substance of the two mitzvot. Even the Rambam concedes that the day-time Shema and the night-time Shema are two separate mitzva actions. The dispute between them is limited to the question of how to count the 613 mitzvot do we count them as one mitzva or as two mitzvot. The Ramban explains the principle behind this in Sefer ha-Mitzvot (principle no. 11, erroneously published in principle no. 9):
And the two daily offerings, and the incense offered in the morning and in the evening, and the Shema are each counted as two mitzvot, for they are mitzvot whose fulfillment are not interdependent, and the time of the one is not the time of the other.
The Rambam certainly agrees that the fulfillment of one is not necessary for the fulfillment of the other, but he counts them as a single mitzva for the reason he writes there: "It has already been explained to you that even parts that are not interdependent are sometimes counted as a single mitzva, namely, when they are one matter." The Rambam and Ramban dispute whether independence of fulfillment is itself a reason for the two acts to be counted as separate mitzvot (according to the Ramban), or whether they may still be categorized as aspects of a single mitzva (according to the Rambam).
A caveat should be added regarding the opinion that the law of tashlumin depends on the fact that the day-time Shema and the night-time Shema are a single mitzva, such that they are related to each other. The reason that they are one mitzva on this view is not because the verse joins them together, "and you shall speak of them when you lie down and when you rise up." For in that case, I would have only said that one can perform tashlumin for the night-time Shema the following morning, for they are connected by the verse; one would not be able to recite perform tashlumin for the day-time Shema during the following evening, as the Torahs link would not be reversible. Rather, the reason that the Rambam counts them as a single mitzva is because they represent one idea, as the Rambam writes in his Sefer ha-Mitzvot¸ principle no. 11 (cited above). For this reason, even the day-time Shema is connected to the night-time Shema that follows it, and therefore it is possible according to Rabbenu Chayyim to compensate for a missing morning Shema the following evening.
(Translated by David Strauss)
 The Meiri there says as follows: "Nevertheless, even after sunrise he recites [the evening Shema] with its blessings as a non-obligatory reading, since [his failure to recite the Shema in its proper time] was due to circumstances beyond his control. What is more there are those who go as far as to say that this is an obligatory reading based on tashlumin, similar to the law that one who erred and did not pray the Arvit service prays the Shacharit service twice. But this is certainly not correct, for this was only stated regarding the Amida prayer, which is [supplication for] mercy, so that [even] if a person [already] prayed, he can offer another voluntary prayer, which is not the case regarding Shema and its blessings. Rather he recites it not as an obligation, but with its blessings."
 See the Taz (ad loc.) who notes that the Levush disagrees with the Rema on this point.
 The Meiri refers here to the Gemara in Berakhot 11b.
 See Magen Gibborim 58:9, who argues that according to Rav Hai Gaon, who says that an individual can fulfill the mitzva of Shema without reciting the blessings, there are tashlumin for Shema. He explains that when the Gemara limits "That which is crooked cannot be made straight" to that which is done intentionally, learning that there are tashlumin for an unintentional omission, this refers specifically to an individual.