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Examples of Birur Halacha

The following essays are translations of our Birur Halacha on four sugyot from the beginning of Masechet Brachot (translated by Benzion Boyarsky). For examples of Birur Halacha in the original Hebrew, click here.



From When Can the Shma of the Evening be Read?

Note 1: What is the time of the recital of shma at night? The mitzvah is from the time the stars come out. (Rambam, Laws of Kriat Shma, 1:9)
The time of the recital of shma at night is from the time that three stars come out. If it is a cloudy day, a person should wait [to say shma] until he is no longer in doubt [that three stars have come out]. If he reads before this time, he should reread it without the blessings. If the congregation reads shma early, while it is still day, he should read shma and its blessings with them and when the [proper] time comes he should read shma without the blessings.
Rema: However, a person should not pray again at night, even if the congregation [prays] much time before night, unless he is a person who generally acts with abstinence and piety so that the fact that he prays again does not look like haughtiness.
(Shulchan Aruch, Orach Chaim, 235:1)

From What Time May One Read the Shma in the Evening?

The Gemara explains that the time that the Kohanim begin to eat their teruma, which is the time of the recital of shma according to the Mishna, is when the stars come out. Nevertheless, the custom was to read it earlier than this, in the synagogue during prayer, as the Yerushalmi (halacha א) says. The Rishonim offer various explanations [to explain this contradiction] and those explanations have practical ramifications.
Rashi writes that there is an obligation to repeat it [shma] when it gets dark and that one fulfills his obligation with recital of the first parsha of shma that is read at bedtime.
Tosafot question how one can fulfill his obligation with the recital of one parsha when there is a requirement to recite all three parshiot? Additionally, the recital at bedtime is not an obligatory recital. It is only to [guard] against destructive forces (mazikin) and the Gemara explains later (5a) that a torah scholar is not obligated to recite it. They also ask how it could be that the main recital is not accompanied by the blessings of shma, and how can one disregard the rule to say the blessing of redemption next to prayer which, as is explained later (5b note 2) is fulfilled by saying shma immediately preceding prayer.
Because of their questions, Tosafot themselves explain the prevailing custom in other ways, as we shall see. However, several answers are offered to the questions on Rashi's opinion.
Rashba writes that we can rely on the recital of shma at bedtime even though only one parsha is read, because the Torah obligation is actually only to read just it [the first parsha]. Rabenu Channanel writes that actually one should read the first two parshiot [of shma] at bedtime and to forgo only the parsha of tzitzit whose time initially is not at night. He is quoted by Rabenu Yona (1b in the Rif).
Ritva writes that since there are numerous opinions as to the [earliest] time for the recital of shma [in the evening], and since its recital is only a rabbinic obligation except for the first verse, and since to require the congregation to remain in the synagogue until the night when the stars come out would be a decree that the community could not bear, the sages were lenient and relied on the recital of shma at bedtime.
As to the obligation to say blessings when reciting the shma, Rosh and Rabenu Yona say in the name of R' Amram, that one must say a blessing for the shma at bedtime according to the usual formula of blessings, i.e. "Who has sanctified us with His commandments and commanded us concerning the recital of shma." However, Rabenu Yona points out that nowhere is such a blessing mentioned. Therefore, he suggests that it would be more correct to say the blessing of "Eternal love." Even though it [the blessing of "Eternal love"] is being said on its own, one would still recite the usual formula that we say when it is said in proximity to another blessing. The author of the Sefer Hashlama, the Meiri, and the Ra'ah take a different approach. They write that since the blessings are only a rabbinic requirement, they can be said before the proper time as we learn later (10b) that one who recites shma after the third hour may still say the blessings.
Rashba explains (quoting the Yerushalmi, 2:1) that we are not particular concerning the blessings since their absence does not prevent the fulfillment [of the mitzvah of shma]. . Concerning the difficulty that [by fulfilling] the mitzvah of shma with the shma at bedtime one does not fulfill the requirement of saying the blessing of shma in proximity to prayer, Rashba writes that prayer with a minyan is preferable [to that requirement] so that if the minyan prays early, he should pray with them [even though he thereby misses that requirement]. The Or Zarua writes that Rashi holds like R' Yehoshua that the prayers [of the day] were established in the middle i.e. between the shma of the morning and the shma of the evening so that there is no need to say the blessing of the redemption [in the evening] in proximity to prayer. See later (4b note 2) for different opinions concerning saying the blessing of the redemption next to prayer in the evening.
Rosh resolves the difficulty of having the recital of shma at bedtime serve as the main shma since it is said only to protect one from damaging forces and so a torah scholar is exempt - by reducing that only to one who has read [shma] earlier at the proper time.
Rabenu Yona agrees with Rashi that one does not fulfill his obligation to recite shma at an early hour in the synagogue; however, he writes that one should reread it at the proper time after the stars come out and not wait until shma at bedtime. His reasons for not waiting are because one should not read [shma] after eating and drinking, because one might not have intention to fulfill his obligation [with reading at bedtime] and might even not recite [the shma at bedtime] at all since he might think it was only instituted to counter damaging forces, which might not concern him.
R' Yona's conlusion is that one should read the first two parshiot of the shma at home at the beginning of the evening with the blessing of "Eternal love."
Tosafot quote Rabenu Tam as having an entirely different opinion. He says that one can justify the custom to recite shma with the [evening] prayer in the synagogue before the stars come out, because we rely on the opinion of R' Yehuda that the time to pray the afternoon prayer ends with "Plag Hamincha." Acoordingly, any time after that is the proper time for the evening prayer and shma. He adds that the people rely on the Gemara (27a) that says that there is no decision in the disagreement between R' Yehuda and the sages. Therefore, it should not be surprising that the evening prayer is said early, even though sometimes the afternoon prayer is said after Plag Hamincha. Mordechai writes in the name of the Ra'avya like Rabenu Tam that the halacha is not like our Mishna, and he adds that those who wait to recite shma and pray at night seem like they are acting haughtily, for anyone who does something that is not required is called a simpleton unless he acts with abstinence in other matters as well.
Tosafot themselves question this opinion because there is a contradiction between the custom to pray the afternoon prayer late and the evening prayer early. Besides this issue, Tosafot ask later (folio b) that R' Yehuda himself considers the time after Plag Hamincha to be part of the day. The Rashba and Rosh question the comparison of R' Tam between prayer and shma, for while the afternoon prayer corresponds to the daily afternoon offering and the evening prayer corresponds to the burning of the fats and the limbs [of the sacrifices], shma corresponds to the time of sleeping, which is certainly later [than those times].
Tosafot, in conclusion, bring the opinion of the Ri who explains that those who read shma and pray the evening prayer while it is still day, rely on the opinion of the Tanaim [in the braita brought in folio b] who disagree with our Mishna and say that the time [of shma] is from the time that Shabbath becomes sanctified and from the time that people begin to eat the Sabbath meal. His proof is from the Gemara (27a) that says that Rav prayed the Sabbath [prayer] on the eve of Sabbath [Friday]. This explanation is problematic, since the abovementioned opinion is R' Eliezer's in the braita, while R' Yehoshua's opinion is like the Mishna, and the rule is that the halacha is not like R' Eliezer where he disagrees with R' Yehoshua. The Rosh explains that halacha was decided [like R' Eliezer] because the Rabbis were lenient with regard to prayer, and because of the pressing concern that the congregation might disperse after completing the afternoon prayer and not return for the evening prayer.
The author of the Maor (1b) justifies the custom like the Rosh, and concludes that therefore this leniency applies only to a congregation and not to an individual who must read shma after the stars come out.
The Rambam does not mention a custom to read shma early and he says clearly that the time of the reading of shma is after the stars come out and not before. His opinion is even clearer in the Laws of Prayer (3:7) where he writes that the evening prayer is optional, but nevertheless, one must read shma at its proper time after the stars come out. It is clear that [according to the Rambam] one must reread it completely and not rely on the shma at bedtime that will be said later.
The Mechaber in the Shulchan Aruch brings the custom to read shma early and writes that one should reread shma in its proper time without blessings. Apparently, the reason that he does not accept Rashi's opinion to wait and rely on the shma at bedtime is because of the concerns that Rabenu Yona raised, as explained earlier. As was mentioned, the Rambam holds likewise.
See additionally in the Birur Halacha on page 4 note 2 chapter 5 regarding prayer with a congregation before saying shma.

Reciting "יהא שמיה רבא" During Kaddish
3a: Gemara: And not only this, but also when the Jews go into the synagogues and study halls and respond "May His great name be blessed" The Holy One, Blessed is He nods His head and says, "Fortunate is the king whom they praise so in his house".
Note 2: One should have concentration when answering Kaddish. One should not interrupt between "May his Great Name" and "Blessed".
(Orach Chayim 56:1)

Tosafot write that according to the author of the Machzor Vitri (Part2, chapter 87) the meaning is that God's name should be complete. The continuation refers to another matter, that He should also be blessed. However, Tosafot ask that this [explanation] does not seem [correct] from the text in our Gemara that we respond, "May His great name be blessed." It seems, rather, that the intention is [that the phrase consists of just] one prayer.
The Hagahot Ashri writes (chapter 3:19) that one should not interrupt between the words "His name" and "Great" but between "Great" and "Blessed" there is no problem. In the Darkei Moshe (#7) it is explained that he [the Hagahot Ashri] holds like the explanation of the Machzor Vitri. According to the explanation of Tosafot one could say that one should not interrupt between "Great" and "Blessed" and this is the source for the halacha before us in the Shulchan Aruch.
The Magen Avraham (#2) questions the conclusion of the Rema from that which we learned in Sukkah (39:1) that Rava said not to interrupt and Rav Safra answered him that there is no need to be concerned at all and one can interrupt since his [the reader's] intention is to finish [the phrase]. He explains that according to the first explanation, it is possible to accept the conclusion of the Hagahot Ashri together with the conclusion of the Gemara in Sukka not to interrupt between "His Name" and "Great" and to be concerned about an interruption between "Great" and "Blessed." However, according to the second explanation, how is it possible to accept the conclusion of the Rema not to interrupt between "Great" and "Blessed" together with the conclusion of the Gemara in Sukkah that there is no problem with an interruption?
The Magen Avraham answers that even after the conclusion of the Gemara in Sukkah, one can still say that initially one should not interrupt. He compares this to that which we learned in Yevamot (106b) that there is no concern about making an interruption during the recitation of the chalitza text. Nevertheless, he cites the halacha in Even HaEzer (169:29) that initially one should be stringent and not interrupt. One can add to this answer that which is brought down in Tosafot in Yevamot as a possible answer, that Rava disagrees with Rav Safra in Sukkah and holds that one should not interrupt in the recital of "May His great name." According to this, it is understandable that Rema is stringent in the halacha before us, because he is taking Rava's opinion under consideration.
The Gra (#1) infers from the language of the Beit Yosef that he also explains like Tosafot since he writes that the wording is "May the great name" without the word "His." From here we see that he does not intend to say that the name should be entirely complete as the Machzor Vitri explains that the words "His Name" are a combination of two words. An additional difference between the explanations is brought in the Magen Avraham in the name of the Agudah (Brachot 3) that according to the Machzor Vitri, the word שמיה should be said with a mapik heh because the intention is to say that the name should be complete. This is not so according to the explanation of Tosafot where there is no need for this emphasis. However, the Mor Uktziah writes that he does not understand this and that in his opinion one should say it with a mapik heh according to both explanations.
The Mishna Berura (3) concludes that one should not interrupt like the Rema says. However, there is no need to say it all in one breath. He explains that these words refer to all of it, that is one should not interrupt between "His Name" and "Great" and between "Great" and "Blessed." According to this, one should not have the text of the Rema "and Blessed". So writes the Birkei Yosef in order that one should not err in understanding his intention, as if he [the Rema] only wanted to say to not interrupt between "Great" and "Blessed."

The Division of the Night into Shifts and the Time Appropriate for Supplications (3a-b)

Gemara: We learn in a braita, R' Eliezer says: The night has three shifts. At each shift, the Holy One, blessed is He, sits and roars like a lion, as it says, "God roars from on high and sends out His voice from His holy Abode; He is roaring over His lodgings." We learn in a braita: The night has four shifts. These are the words of Rebbi. R' Natan says: three.
Note 1 (3a): One who arises early [in the morning] should aim for the hours that the shifts change. They are at a third of the night, at the end of two thirds of the night, and at the end of the night. Prayer at those hours concerning the destruction (of the Temple) and the exile are favorable. It is appropriate for every God-fearing person to be pained and worry about the destruction of the Temple.
(Orach Chaim 1:2-3).

1. The Basis for the Custom of Tikun Chatzot
The Gemara explains that R' Eliezer used the expression "the end of the shift" to teach us that the change of the shifts in heaven is noticeable on the earth. The Rosh writes (2) that every God fearing person should be pained and worry at that time and pour out supplications concerning the destruction of the Temple, as it says "Arise, cry out at night in the beginning of the shifts" (Lamentations 2:19).
In the Gemara there is a disagreement as to the times [under discussion]. According to one explanation, what is meant is the end of the first shift, the beginning of the last shift, and midnight. However, according to the second explanation, the relevant times are the end of the shift for each of the three shifts. This is the opinion of the Shulchan Aruch who writes that one who gets up early to supplicate should aim for the hours that the shifts switch, at the end of each shift. In other words, the halacha is decided according to the second answer in the Gemara.
The Rashba writes, in addition to this, that the time of supplications is always at the beginning of the shift, as is implied by the abovementioned verse. Therefore, he writes that the time of midnight that is mentioned according to the first explanationis not mentioned in connection to this (supplications); rather, [it is mentioned] in connection with eating sacrificial food that can be eaten only until midnight.
From the opposite extreme, the Magen Avraham writes (4) that the Kabbalists wrote at length about prayer at midnight. This only fits in with the first explanationof the Gemara. The Machatzit Hashekel adds that now that the Zohar has been revealed, it is better to have the Gemara agree with the Zohar, and this is possible by preferring the first explanation of the Gemara.
The Vilna Gaon writes in Imrei Noam that even in the second explanation, the Gemara does not retract from that which it said about midnight. That which it says [in the second explanation] that R' Eliezer refers to the end of the shifts, concerns only the first and third shifts. The Vilna Gaon adds that according to this [explanation] the result is that all three shifts and their signs are required for the issue of reading the shma: The end of the first shift is required for R' Eliezer, the middle of the middle [shift], (which is midnight) for the sages, and the end of the last shift for R' Gamliel. It seems that he hints likewise also in his commentary to the Shulchan Aruch, where he writes that donkeys bray and dogs bark until midnight. So we can see that he notes the time of midnight as the halacha in the opinion of the Shulchan Aruch, even though it seems that he (the Sulchan Aruch) decides like the second explanation of the Gemara.

2. Fixed Hours or Variable Hours
Presumably, the night is measured in variable hours regarding this issue, since the Gemara says that the beginning of the first shift is when it gets dark and the end of the last shift is when it becomes light.Therefore, since in the winter the night is long, the hours are longer too and in the summer when the night is short, so are the night hours.

3. The Halacha from Among the Tanaic Opinions
The braita quotes the opinion of R' Eliezer who says that the night has three shifts. However, a later braita quotes an argument between Rebbi and R' Natan as to whether the night has three or four shifts. The practical ramification is when the optimal time for offering supplications is, as was explained previously. If the night has four shifts then the contradiction between the Gemara and the Zohar regarding midnight is resolved, for that would match the end of the second shift.
The Meiri writes that another practical ramification would be concerning someone who vows to read or learn until the end of the first shift or hires himself out until this time. In addition, the Gemara in Yoma (20a) says that there is significance to the time of the shifts regarding removing the ashes from the altar. On holidays the ashes are removed from the end of the first shift, so it's important to decide if that means after a third of a quarter of the night or after a third.
The halacha under discussion says that the night is divided into three parts and so is in the opinion of the Rambam in the Laws of Timidim 2:11 who writes that the ashes are removed from the altar on the holidays from the middle third of the night. It is clear, therefore, that we hold like R' Natan and not like Rebbi since the first braita of R' Eliezer supports him.


The Latest Time of the Evening Shma

Mishna: "Until the end of the first watch." These are the words of Rebbi Eliezer. The sages say, "Until midnight." Rabbi Gamliel says, "Until dawn." Once his [R' Gamliel's] sons came from a celebration. They said to him, "We have not read the shma." He said to them, "If dawn has not yet come, you are obligated to read." If so, why did the sages say [the shma may be read only] until midnight? In order to distance a man from sin.
Notes 2, 3: What is the time of the shma at night? The mitzvah is from when the stars come out, until midnight. [However,] if one transgressed and delayed and read [shma] before dawn, he has fulfilled his obligations for [the sages] only said [that shma must be read before midnight] in order to distance a man from negligence.
(Rambam, Laws of Shma 1:9)
Initially shma should be read immediately after the stars come out. Its (latest) time is until midnight. If one transgressed and delayed and read [shma] before dawn he has fulfilled his obligation.
(Shulchan Aruch, Orach Chaim 235:3)

In the Gemara later (8b) Rav Yehuda says in the name of Shmuel that the halacha follows R' Gamliel. The Rif writes (20a) that this is only after the fact, but initially one should follow the sages and not delay reciting shma after midnight.
Rabeinu Yona adds that all opinions agree that initially one should not wait at all and rather should read [shma] immediately after the stars come out as it says in a braisa later (4b) that a person should not come home from the field in the evening and say, "I will go to my house and eat a little, drink a little, and sleep a little," fir in the end he might fall asleep for the whole night [and not read shma]. He explains that the disagreement of the Tanaim is not on the law for the initial [situation] but rather the after the fact [situation]. According to the sages, one does not fulfill his obligation after midnight for they uprooted the mitzvah as a protective fence; however, according to Rabban Gamliel one may read until dawn.
The Rashba (9a), Ri Shirlyon (8b), and the Ritva have a different opinion. They hold that one may initially wait until dawn [to read shma] for that is R' Gamliel's opinion- as long as one does not engage in those things that lead to forgetfulness such as eating, drinking; the things that lead to sleep. The Rashba brings a proof from the Yerushalmi (Halacha 1). It says there that Rabbi Yose told the scholars to interrupt their learning at midnight to read shma, for R' Yose holds like the sages and therefore told them to stop at midnight. However, from this [we see] that those who hold like R' Gamliel would permit (the scholars) to continue learning until dawn.
However, this proof can be rejected since it is possible that it is only permissible for those learning torah, who are allowed to continue especially because they started before the initial time [of reading shma].
Rambam writes like the Rif, that initially one may read [shma] until midnight and only after the fact may one read until dawn.
The Gra (in his commentary to the Shulchan Aruch, in Imrei Noam, and Shnot Eliyahu) writes that the explanation of this halacha differs between the Bavli and the Yerushalmi. The Bavli says later (9a) that R' Gamliel's sons asked him if the sages agree with him or not. He responded that they agree with him. From this it appears that the halacha is like the sages who agree that after the fact one may read shma until dawn. As opposed to this [explanation] in the Yerushalmi (halacha 1) Rabbi Gamliel's sons ask him how he could act against the opinion of the sages and the answer is that it is impossible to do so, since midnight had already passed. This implies that according to the sages one cannot fulfill one's obligation even after the fact (after midnight) as Rabeinu Yona explains but after the fact the halacha is according to Raban Gamliel.
The Machaber writes in the Shulchan Aruch like the Rambam with one difference. He stresses that initially one should read shma right after the time the stars come out as Rabeinu Yona says. However, it is possible that this law has no specific connection to the halacha of the time of shma and is rather based on the well known rule of "Those who are zealous perform mitzvosas early as possible." So writes the Mishna Berura (26-27) and so we can imply from the Meiri who writes that one should read the shma when the stars come out, which is the preferred manner of fulfilling the mitzvah.



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