Yom Tov Sheni (2)

  • Rav David Brofsky

the laws of THE FESTIVALS

THE LAWS OF YOM TOV

by Rav David Brofsky

 

Shiur #30: Yom Tov Sheni (2)

  

Introduction

 

            Last week, we discussed the institution of Yom Tov Sheni.  We noted that before there was an established calendar, the beit din in Jerusalem would declare which day was the first of the month, Rosh Chodesh, based upon the testimony of witnesses who saw the new moon. They would then send out messengers to inform the outlying communities which day was declared to be Rosh Chodesh so that they could then properly observe the festivals.  Communities located too far from Jerusalem to be informed of the precise day of Rosh Chodesh would observe two days of Yom Tov out of doubt. 

 

            After the establishment of a set calendar, sometime during the late Amoraic period, these remote communities were instructed to continue to follow the “custom of their forefathers” and observe two day of Yom Tov, lest a foreign government make a decree against the Jewish People that would somehow affect their ability to observe the festivals in their proper time. We learned that the Rambam maintains that only communities within a ten day journey from Jerusalem and which historically received the messengers of beit din may observe one day of Yom Tov. Some therefore question whether nowadays, according to the Rambam, even communities in Israel that were established after the Talmudic era should observe two days.  The Ritva, however, insists that the Rabbis drew a clear line: communities within the Land of Israel observe one day of Yom Tov, while Diaspora communities observe two. 

 

            Finally, we noted that although the halakha is in accordance with the Ritva, some question whether some areas of the current State of Israel, such as Eilat and the southern Negev, are within the boundaries of the Land of Israel regarding the observance of one day of Yom Tov.

 

            This week, we will discuss a question that has received much attention in recent years: how many days must one observe if he lives outside of Israel but is visiting Israel during Yom Tov, intending to return thereafter to his home in the Diaspora? Conversely, how many days must an Israeli keep if he visits a Diaspora community for Yom Tov and intends to return to this home in Israel?

 

We will begin by discussing a resident of the Diaspora, a ben Chutz La-Aretz, who visits Israel.

 

A Visitor to Israel - Two Days

 

The Rishonim and Acharonim differ regarding a ben Chutz La-Aretz who visits Israel for the Festivals.  His status will determine not only whether or not he may perform melakha on the second day of Yom Tov, but how he prays, whether or not he lays tefillin, when he recites havdala, and sometimes whether or not he must prepare an eiruv tavshilin.

 

Last week, we mentioned that some view the practice of Diaspora communities to observe two days of Yom Tov as fundamentally a custom.  If so, we might compare this case to one in which a person who observes one custom visits a place where they keep a different custom

 

The mishna (Pesachim 50a) discusses a case in which a person travels from one place to another: 

 

One who goes from a place where they work to a place where they do not work, or from a place where they do not work to a place where they do work – we lay upon him the restrictions of the place from which he departed and the restrictions of the place to which he has gone. A man must not act differently [from local custom] on account of the quarrels [which would ensue].

 

The mishna teaches that one who travels from one place to another should retain the customs of his place of origin, and not violate the customs his destination, in order not to cause “machloket." R. Ashi (51a) explains that this refers only to one who intends to return to his place of origin. However, one who does not intend to return to his place of origin should accept the customs of his new home, even in private. Indeed, the Rosh (4:4), for example, adds that one may accept upon oneself the customs of his new place, regardless of whether they are more lenient or more stringent than his original customs. 

 

R. Yosef Karo, in his Responsa (Avkat Rochel 26), concludes that:

 

One who leaves Eretz Yisrael to Chutz La-Aretz and has intention to return, it is as if he were still in Eretz Yisrael; similarly, one who comes from Chutz La-Aretz to Eretz Yisrael with the intention to return is in the category of one who lives in the Diaspora. 

 

Interestingly, the question posed to R. Karo assumed that one who visits Eretz Yisrael should observe two days, as R. Karo notes is customary, and asks regarding the appropriateness of holding public prayers when the population does not observe Yom Tov Sheni.  R. Karo rules that a visitor to Israel should observe a full two days of Yom Tov, and sanctions holding public Yom Tov Sheni prayers. The Rabbis were only concerned that deviating from the minhag ha-makom may lead one to violate a prohibition, such as a prohibited melakha, which is not a fear in this case. 

 

Most contemporary Poskim accept this view (see, for example Mishna Berura 496:13, Iggerot Moshe, Orach Chaim 4:101, Minchat Yitzchak 4:1-4, 9:54, Minchat Shlomo 1:19, and others, as we shall see below). Those authorities who accept this ruling must grapple with a host of questions.  Let us assume for now, as R. Karo rules in the Shulchan Arukh (496:3), that the same principle would apply to one who leaves Eretz Yisrael and visits Chutz La-Aretz.

 

First, these authorities must determine who is considered to be “ein da’ato lachzor,” one whose intention is not to return to his place of origin.  Often, one’s intention is not clear, even to the person himself. In addition, other factors may be considered in determining whether one’s relocation, or intent to return, is taken seriously.

 

For example, the Poskim discuss one who leaves Eretz Yisrael with his family in order to work, but intends to return to Israel. The Magen Avraham (497:7) cites the Radbaz, who maintains that one who relocates with his wife and children cannot be considered to have in mind to return to his place of origin.  R. Moshe Feinstein (Iggerot Moshe 3:74), however, insists that nowadays, when traveling from one place to another is much simpler, whether we consider one to have relocated depends on his intentions, and not on the mere fact that he moved with his wife and children. We must still determine whether one who relocates for an extended period of time for business purposes or studies is still considered to be a resident of his place of origin.

 

The Poskim also discuss whether students who come to study in Israel must observe Yom Tov Sheni. Although students have traveled to Eretz Yisrael for centuries in order to learn Torah, this phenomenon has increased dramatically over the past forty years. 

 

R. Chaim Yosef David Azulai (1724–1806), known as the Chida, discusses this question in his responsa, Chayyim Sha’al (1:55). He cites a well-known debate among his predecessors regarding whether students who come to study in Israel with the intention of returning to Chutz La-Aretz should observe one or two days. He notes that although a number of prominent rabbis from Tzfat ruled that these students should observe two days, the great rabbis of Jerusalem, including R. Yaakov Chagiz (1620–1674) in his Halakhot Ketanot (4), rule that an unmarried man should observe one day, as he may eventually find a spouse and stay in Israel. R. Ovadia Yosef (Yechave Da’at 1:26; Yabi’a Omer 6:40) rules accordingly. Alternatively, the Magen Avraham (468:12) writes that a student who comes to Eretz Yisrael to study for two to three years must still observe two days of Yom Tov.

 

Many Poskim reject applying a broad, lenient ruling to any student who comes to Israel to study, as most of them intend to return to their place of origin to study or work. We might still question, however, whether a student who comes to Israel to study or work without any specific plans to stay or leave (open-ended) must observe one or two days of Yom Tov. Some rule that this person, either because of his lack of financial independence or due to his indecisiveness regarding whether he intends to stay in Israel, must observe two days. Others rule that this student should observe one day, but should refrain from performing melakha on the second day of Yom Tov. Some insist that he should observe only one day of Yom Tov. (See Piskei Teshuvot 296:26, who presents these opinions.) 

 

In addition to determining how to gauge “intent,” the Poskim who agree with the Avkat Rochel must also determine how to define a resident of Eretz Yisrael. On the one hand, one who still resides in Chutz La-Aretz but decides to move to Eretz Yisrael, and even one who already sold his house and property, is still considered to be a ben Chutz La-Aretz and must observe two days until he actually moves to Israel (Iggerot Moshe, Orach Chaim 4:108). 

 

On the other hand, does living in Eretz Yisrael for a certain amount of time automatically define one as a “resident”? The Arukh Ha-Shulchan (496:5) suggests that one who lives in a certain place for more than twelve months is considered to be a resident of the new place (see mishna, Bava Batra 7b). This notion is also found in a responsa from the Geonim (Responsa Geonei Mizrach U-Ma’arav 39), and in other Acharonim (see Tzitz Eliezer 9:30). Others (Magen Avraham 468:12; see also Seridei Eish 2:161, for example) reject this rationale.  R. Shlomo Zalman Auerbach (Minchat Shlomo 1:19:7) offers another criterion: one who spends all three festivals (Pesach, Shavuot and Sukkot) in Israel should observe only one day of Yom Tov. Many Poskim deny any objective residency criterion, ruling that whether one observes one or two days of Yom Tov depends solely on his intention to stay in Eretz Yisrael or to return to Chutz La-Aretz.

 

In addition to determining whether one should observe one or two days of Yom Tov, these Poskim are confronted with new halakhic questions, which do not appear in the Talmud.  For example, may one who observes two days of Yom Tov in Eretz Yisrael ask a Jew who observes one day to do a melakha on his behalf? Generally, amira le-nachri is prohibited, but do the same laws apply to this scenario?

 

R. Azulai, in his commentary to the Shulchan Arukh, the Birkei Yosef (496:4; see also Sha’arei Teshuva 496:3), cites a debate regarding whether a visitor to Israel may ask a resident to perform a melakha on Yom Tov Sheni.  Similarly, R. Shlomo Kluger (1783–1869), in his comments to the Shulchan Arukh, the Chochmat Shlomo, records an incident that occurred on Simchat Torah (Yom Tov Sheni), in which the Rabbis asked a visitor from Israel to cover himself with a tallit and fix a mistake in the Sefer Torah. R. Kluger insists that this ruling was mistaken, as it is prohibited to ask any person to perform melakhot on Yom Tov Sheni. R.  Moshe Feinstein (Iggerot Moshe, Orach Chaim 3:73) concurs. He notes that one should not compare our case to one who accepts Shabbat early, who may ask another Jew who has not yet accepted Shabbat to do a melakha (263:17).  The Shemirat Shabbat Ke-Hilkhata (chapter 31, note 80) records that many are lenient regarding this question, and R. Shlomo Zalman Auerbach (Minchat Shlomo 1:19:3) attempts to justify this practice. 

 

In summary, the Rishonim and Acharonim cited above all maintain that fundamentally, one who visits Israel from abroad should observe the custom of their place of origin and observe two days of Yom Tov. They debate, however, how to determine when one is considered to have moved to Israel and other related questions.  Interestingly, R. Yosef Karo himself omits this ruling in his Shulchan Arukh, discussing only one who travels from Eretz Yisrael to Chutz La-Aretz. 

 

A Visitor to Israel - One Day

 

            Other authorities, however, rule that one who visits Israel nowadays must only observe one day of Yom Tov.

 

            Rabbi Tzvi Hirsh Ashkenazi (1660–1718), in his Responsa, the Chakham Tzvi (167), rules that one visiting Israel should observe only one day of Yom Tov.  He writes:

 

It seems clear to me that regarding the issues of the festivals, they should behave like one of the residents of Israel, and this is not considered to be a case of [one who must observe] the stringencies of the lard from which he came… The entire time they are in the land of Israel, even for a temporary stay, since the location determines [their status], they are not subject to [the laws of] keeping the stringencies of their original place.

 

The Chakham Tzvi writes that the principle of observing the stringencies of one’s place of origin does not apply in this case. Yom Tov Sheni is not a personal custom observed by the inhabitants of a certain area, but rather a custom dependent upon the specific place. Indeed, in ancient times, one who visited Israel for the festivals would certainly observe one day of Yom Tov, as a visitor to Eretz Yisrael had no doubt as to the proper day of Yom Tov. Indeed, one who observes a second day of Yom Tov, according to the Chakham Tzvi, risks violating bal tosef, the prohibition of adding mitzvot to the Torah. 

 

R. Shneur Zalman of Liadi (1745–1812), also known as the Baal Ha-Tanya, cites both this ruling and the view of R. Yosef Karo in his Shulchan Arukh Ha-Rav (496:11) and implies that he sides with the view of the Chakham Tzvi.  Furthermore, elsewhere (496:11; Mahadura Tinyana 1:8) he rules that one who travels from Eretz Yisrael to Chutz La-Aretz must observe a full two days of Yom Tov, leading some to believe that conversely, one who visits Eretz Yisrael must observe only one day.

 

Incidentally, the Chakham Tzvi does not address the opposite scenario of a resident of Israel who visits the Diaspora on Yom Tov.  Although some assume that the Chakham Tzvi would certainly require one who visits Chutz La-Aretz to observe two full days, R. Tzvi Pesach Frank (Har Tzvi 3:78) disagrees. He suggests that nowadays, after the calendar has been established, Chutz La-Aretz is not viewed as a place of inherent doubt regarding the proper day to observe Yom Tov, and a visitor would not be required to observe two full days of Yom Tov. 

 

            R. Chaim Soloveitchik (Reshimot Shiurim, Sukka, p. 226), R. Avraham Yitzchak Ha-Kohen Kook, and other Poskim (see opinion cited in Minchat Yitzchak 8:59) adopt this opinion.

 

Visitors to Israel - “A Day and a Half”

 

The Sefer Ir Ha-Kodesh Ve-Hamikdash (19:11) records that R. Shmuel Salant (1816–1909), the former Ashkenazic Chief Rabbi of Jerusalem, agreed with the opinion of the Chakham Tzvi. He even felt that R. Yosef Karo omitted his ruling from the Avkat Rochel in the Shulchan Arukh because he changed his mind and held that all visitors should observe one day of Yom Tov in the land of Israel. 

 

However, in deference to the popular custom and the ruling of R. Yisrael of Shklov (1770–1839), a student of the Vilna Gaon who immigrated to Eretz Yisrael who became the head of the Ashkenazic communities of Tzfat and Jerusalem and authored the Pe’at Ha-Shulchan, R. Salant recommends observing what later became known as a “day and a half.” He writes that one should hear havdala from a resident after the first day of Yom Tov, one should lay tefillin on the final Yom Tov Sheni, and that one should recite weekday prayers on the second days of Yom Tov. 

 

This position has been adopted by numerous Poskim, although they differ as to the extent to which one should observe Yom Tov Sheni. While some suggest that one should merely refrain from melakhot, others recommend that one should fulfill the positive commandments, such as the mitzvot of the second seder, hearing the berakhot from another person. R. Soloveitchik and R. Aharon Lichtenstein also rule that one visiting Eretz Yisrael, including students who come to study but intend to return, should refrain from performing melakhot on the second day of Yom Tov. 

 

An Israeli visiting Chutz La-Aretz for the Festival

 

How many days must a resident of Israel visiting Chutz La-Aretz observe? The Shulchan Arukh Ha-Rav (496:11; Mahadura Tinyana 1:8), as mentioned above, based on a kabbalistic understanding of Shabbat and Yom Tov, rules that one should observe a full two days of Yom Tov in Chutz La-Aretz. Other Chassidic authorities (see Avnei Nezer, Orach Chaim 424, Minchat Elazar 3:59) are also inclined to rule that a visitor in Chutz La-Aretz should observe two full days.  They acknowledge, however, that it is not customary for visitors to observe a full two days of Yom Tov. 

 

R. Yosef Karo rules in the Shulchan Arukh (496:3):

 

Residents of Eretz Yisrael who come to Chutz La-Aretz are forbidden to perform melakha on Yom Tov Sheni in a town (yishuv), even if he has the intention to return. The entire time he has not reached the town, even if he does not have the intention to return, it is permitted [to perform melakha] since he had not established himself to be like them [the residents of the new town].

 

In other words, when a visitor reaches a town, which the Mishna Berura (5) defines as a town with Jewish population, he must refrain from doing melakha.  However, is he is not in a populated area or an area not populated by Jews, he may perform melakha. 

 

As we discussed above, one must determine how to establish one’s status as a resident of Eretz Yisrael and how to assess whether one truly intends to return to Eretz Yisrael.  The Poskim discuss whether Israeli families who travel to Chutz La-Aretz for business or as emissaries for the government or a Jewish agency, who intend to return to Israel after their allotted time abroad, should be considered to be benei Chutz La-Aretz or benei Eretz Yisrael. (See, for example, Har Tzvi 2:78 and Yechave Da’at 3:35; Sefer Yom Tov Sheni Ke-Hilkhato, p.  83) 

 

According to this ruling, one who visits Chutz La-Aretz should refrain from doing melakha on Yom Tov Sheni in order to avoid deviated from the local norm.  Therefore, he also should dress in Yom Tov clothing (Chayei Adam 103:4).  However, he should pray, silently, the weekday prayers, and lay tefillin in private. 

 

The Rishonim disagree as to whether he must observe these stringencies in private as well.  Rashi (Pesachim 52a, s.v. ba-yishuv) implies that work is only prohibited in public, where others can see. Tosafot (52a, s,v, ba-yishuv) explain that work is prohibited in private as well. Although the Taz (496:4) rules in accordance with Rashi, the Magen Avraham (496:2) and Mishna Berura (9) accept the position of Tosafot. 

 

Even those who are stringent permit one to perform melakhot that the observer would assume are permitted.  For example, when Yom Tov falls out on Thursday, a visitor may cook on Friday without having made an eiruv tavshilin, as the observer will assume that he prepared an eiruv tavshilin.  Similarly, one may move a keli she-melakhto le-issur, as the observer may assume that he is moving the muktze for a permitted purpose. R. Moshe Feinstein suggests that one may turn on a light privately, as many set their lights on a Shabbat clock.  One may shower on Yom Tov Sheni, even in a manner prohibited on Yom Tov, as the observer will assume that he showered in a permissible manner. 

 

Unfortunately, many Israeli who visit Chutz La-Aretz for Yom Tov are not careful regarding this matter. Even those who permit performing melakhot in private do not permit driving or other public violations of Yom Tov Sheni. 

 

Let us conclude with an interesting question, at times relevant to travelers from Israel.  May an Israeli fly from Israel after Yom Tov ends there and arrive in Chutz La-Aretz on Yom Tov Sheni? First, is an airport, even one located within the area of a town with Jewish inhabitants, considered a yishuv? Some Poskim prohibit taking such a flight, as landing in an airport would be a violation of the local custom in Chutz La-Aretz. Others view an airport, even within the vicinity of a city with a Jewish population, as “extra-territorial” – and therefore one would be permitted to land and stay in the airport. However, one would certainly not be permitted to drive to a yishuv with Jewish residents, as that certainly deviates from the public observance of Yom Tov.  (See Piskei Teshuvot 496:10 and Sefer Yom Tov Sheni Ke-Hilkhato 3:3.)

 

Next week, we will begin our study of the laws of Chol Ha-Moed.