Parshas Behaloscha – 5785 – Intriguing Questions & Answers
Handling a Yerushah When One of the Brothers Is a Shoteh
Q:
There was a certain family where the parents — both of advanced age — wished to arrange a tzava’ah (halachic will) for their four sons. However, one of the brothers is classified as a shoteh, with a longstanding condition of diminished mental capacity. The question is: how should the yerushah be handled in a halachically proper way, given that one of the yorshim lacks da’as? Can the remaining brothers manage the division on his behalf, or must an apitropus be appointed?
A:
The Shulchan Aruch (Choshen Mishpat 290:1) rules that when a person passes away and leaves over yesomim who are ketanim, or ketanim and adults, an apitropus must be appointed to act on their behalf in managing the estate. This should ideally be done by the deceased before they passing. If they did not, it becomes the obligation of Beis Din to appoint an apitropus. This should not be a woman or an am ha’aretz; rather, it should be someone of integrity who will act in the best interest of the yesomim. who is capable, knowledgeable, and will act solely l’to’eles of the ketanim.
Later in that Siman (se’if 27), the Shulchan Aruch writes explicitly that a shoteh and a cheiresh have the same halachic status as a katan regarding yerushah, and thus similarly require the appointment of an apitropus to represent their interests.
Accordingly, even if the brothers unanimously agree to divide the assets and manage the portion belonging to the shoteh brother, such an arrangement has no halachic standing, since they are all noge’a b’davar (biased). Therefore, an independent and qualified Beis Din — comprised of dayanim who are mumchim, and not simply any three individuals — must formally appoint an apitropus to act on the shoteh’s behalf. However, if Beis Din has personal knowledge of the brothers and considers them trustworthy to handle the matter with full integrity, they may empower them accordingly. This was the ruling of HaGaon Rav Nissim Karelitz zt”l, cited in Sefer Mayim Chaim (p. 197).
Additionally, the poskim write that this halachah applies not only to someone halachically defined as a shoteh, but also to one whose mental faculties have significantly deteriorated due to age, illness, or mental condition. In such cases as well, the individual is halachically classified as lacking da’as, and requires the appointment of an apotropos by Beis Din to manage his affairs.
We should also mention a case that occurred involving an almanah who purchased a wedding ring for her son, the chosson. Unfortunately, she passed away before the wedding, and a question arose whether it is permissible to use that ring for the kiddushin.
In Shu”t Shevet HaLevi (9:293), this issue is discussed. He writes that there is a safek whether it may be used for kiddushin, since it was inherited by her yorshim — among whom were ketanim.
However, he concludes that if from the outset the mother acquired the ring specifically on behalf of her son, and it was thus acquired by him, and furthermore, considering that the wedding was imminent, we can reasonably assume that her intent was to bequeath it to him alone — then it is permitted to use it.
Nonetheless, he adds that a good eitzah is to have a proper apotropos appointed through Beis Din, in accordance with halachah.
Reciting Sheva Berachos on the Night of the Eighth Day When the Meal Began on the Seventh Day
Q:
It is quite common for the final Sheva Berachos meal to be hosted by close friends or family of the chosson and kallah. Out of joy and excitement for the simcha, the meal often extends over many hours — sometimes even continuing past nightfall. The question then arises: once night has fallen and it is halachically the eighth day (motza’ei the seventh), may Sheva Berachos still be recited, or is it considered outside the time frame of the shivas yemei hamishteh?
A:
Many of the gedolei ha’poskim rule that if the Sheva Berachos meal began on the seventh day but extended into the night of the eighth, the Sheva Berachos must be recited only during the daytime of the seventh day. They may not be recited during bein hashmashos or certainly once it is halachically nighttime on the eighth day.
This ruling is based on the psak of several major acharonim and poskim. R’ Akiva Eiger on Even HaEzer (62:6) and the Sha’arei Teshuvah (Orach Chaim 188:7) cite the Ginas Veradim, who writes that if a Sheva Berachos meal took place on the last day of the shivas yemei hamishteh, even if the meal ended before shki’ah but the birchas nisuin was delayed until after shki’ah, the Sheva Berachos may no longer be recited.
Rav Yosef Shalom Elyashiv ztz”l explained the distinction between this halachah and the halachah of saying Retzei in bentching after shki’ah on Shabbos: In the case of Sheva Berachos, after shkiah, the chosson and kallah no longer halachically carry the status of chosson and kallah and groom for this purpose, and therefore the berachos may no longer be said. However, when it comes to mentioning Shabbos in bentching, it suffices that the meal was a seudah shel Shabbos, even if the bentching is said after shkiah.
Rav Elyashiv ztz”l therefore ruled that Sheva Berachos should not be recited after shkiah on the seventh day, even if that day falls on Shabbos. He also related that the Klausenberg Rebbe ztz”l once invited him to the final Sheva Berachos meal for his daughter’s wedding in order to honor him with a brachah, along with Rav Dov Weiss shlit”a. Rav Elyashiv declined the invitation, explaining that he could not attend unless he was assured that the meal would end before shki’ah. The Klausenberger Rebbe ztz”l responded that he would ensure it concluded in time.
This was also the psak of Rav Shlomo Zalman Auerbach zt”l. See also Otzar HaPoskim (Even HaEzer 62:6), which brings an extensive discussion of this issue.
Similarly, Rav Nissim Karelitz zt”l said in the name of the Ponovezher Rav zt”l that Sheva Berachos should not be recited after shki’ah on the seventh day. He compared it to the case where the chosson leaves the room during the meal, in which case Sheva Berachos cannot be recited. He added that there is no distinction between weekday meals and seudah shlishis on Shabbos that falls on the seventh day — in all such cases, Sheva Berachos may not be recited once the sun has set.
How Are the Seven Days of Sheva Berachos Counted?
Q:
Closely related to the previous discussion, a fundamental question is often asked: From when do we begin counting the shivas yemei hamishteh? Is the count from the start of the meal following the chuppah, or from the time of the chuppah itself?
A:
In Teshuvos HaRosh (klal 26, siman 2), cited by the Rema (Even HaEzer 62:6), it is stated that the counting of the seven days begins immediately after the Sheva Berachos recited under the chuppah. The Chelkas Mechokeik (s.k. 7) explains that the Rema, citing the Rosh, is coming to exclude the notion that the seven days begin with the first meal — rather, they begin as soon as the Sheva Berachos are completed under the chuppah. See also Makneh (Even HaEzer 61:5). This view is also followed by the Aruch HaShulchan (62:31) and the Kaf HaChayim (131:69), unlike the opinion of the Teshuvos Knesses Yechezkel, cited in Pischei Teshuvah (12), who holds that the count begins only after the conclusion of the first meal, not from the chuppah. This was also the ruling of the Igros Moshe zt”l, as brought in Teshuvos Divrei Chachamim.
Nevertheless, it is worth noting what is written in Sefer Sova Semachos by Rav Seraya Dublitzky ztz”l (1:14), who states that even though the halachah does not follow the Knesses Yechezkel with respect to Sheva Berachos, it is still proper that regarding the other halachos of a chassan, such as refraining from melachah (work) or going out alone — to be stringent in accordance with his view, and to count the seven days starting from the night following the chuppah. This view is also echoed in Yabi’a Omer, Even HaEzer vol. 5, siman 7.
However, in Sefer Imrei Yaakov (Even HaEzer 64, Likkutim §2), he writes that although there are poskim cited in Otzar HaPoskim (62:2) who rule stringently to avoid melachah for seven days starting from that night, nonetheless, halachically, one need not be strict. Since the essence of the chuppah is the act of seclusion (yichud) or the placing under the canopy — as explained by the Chazon Ish (Even HaEzer 63:17) and also by the Taz — even though there are dissenting opinions, given that the prohibition of melachah for a chassan is derabbanan, one may rely on the more lenient position. It seems that this is indeed the common practice — that the issur melachah follows the chuppah and not later at night.
Kol Isha of One’s Stepdaughter
Q:
I was asked by a man who married a woman in a second marriage, and she has a young daughter who frequently sings, as is common for young children. The question is whether there is a concern of kol isha in such a case—as the girl is considered an ervah to him, as she is his wife’s daughter.
Before answering, I will note that this question followed something I published about two weeks ago regarding whether a stepfather may touch his stepdaughter. There we cited the view of leading halachic authorities that after the age of three for a girl (and nine for a boy), physical contact—especially affectionate touch—is not permitted. This led to the present question: what about kol isha of the girl once she is older than three? Is there more room for leniency?
A:
The source for the prohibition of hearing a woman’s voice is found in the Gemara (Berachos 24a):
“Rav Chisda said: A woman’s leg is ervah, as it says, ‘Uncover the leg, pass through the rivers’ (Yeshayah 47:2), and it continues, ‘Your ervah shall be uncovered’ (47:3). Shmuel said: A woman’s voice is ervah, as it says (Shir Hashirim 2:14), ‘For your voice is sweet and your appearance is lovely.’ Rav Sheshes said: A woman’s hair is ervah, as it says (Shir Hashirim 4:1), ‘Your hair is like a flock of goats.’”
The Chayei Adam (Nishmas Adam 1:4) explains that although voice and hair are termed ervah, this is only m’drabanan. The pesukim quoted do not explicitly state that they are ervah, but rather indicate that these are aspects of a woman’s beauty. Thus, Chazal prohibited them due to the concern they may lead to hirhur.
Based on this, he writes further that although the Shulchan Aruch (Orach Chaim 75) rules that even closing one’s eyes doesn’t help during Krias Shema if ervah is present, this only applies to actual ervah. With something that is only assur d’rabanan due to potential hirhur, closing one’s eyes would be effective. In any case, it’s clear from his words that the prohibition of hearing a woman’s voice is rabbinic, out of concern for hirhur due to the attractiveness of a woman’s voice.
The Shulchan Aruch (O.C. 75:3) rules that one must avoid hearing a woman’s singing voice during Krias Shema. The Rema adds:
“Even one’s own wife—but a voice one is accustomed to is not considered ervah.”
From the Hagahos Maimoniyos cited by the Rema, it seems that the issue is the potential for hirhur:
“A woman’s voice… Rabbeinu Chananel explained that although the voice is not visible, it still leads to hirhur. However, this only applies to voices not regularly heard; if one is accustomed to it, such as a besulah who regularly reveals her hair, we are not concerned. So too with a voice one is used to.”
It is evident, then, that the prohibition is due to potential hirhur, and when there is no such concern—such as when one is already accustomed to the voice—the prohibition does not apply. This applies equally to speaking voice and to singing.
The Pischei Teshuvah (Yoreh De’ah 195:10) raises a question whether a husband may hear his wife’s singing voice while she is a niddah. He points out that since the Gemara (Shabbos 13a) compares a niddah to another man’s wife, and the Torah testifies she is “fenced with roses” (Sanhedrin 37a), perhaps hearing her voice would be forbidden, since with another man’s wife it is clearly prohibited (Berachos 24a).
However, the Suggah B’Shoshanim (Vilna, 1894; a student of the Tzemach Tzedek, Y.D. 195) refutes this, citing Talmidei Rabbeinu Yonah who write that the main issue with hearing a woman’s voice is that it may lead to looking at her, and since regarding one’s wife while she is a niddah, looking at the uncovered parts of the body that are normally exposed is permitted, hearing the voice is even more so. Thus, if one is already accustomed to the voice, the concern does not apply.
Even though many are strict regarding hearing a wife’s singing voice while she is a niddah, as several Acharonim write, it is possible they were only referring to a general case. Where one is already used to hearing her sing, it may be permitted.
Therefore, in my humble opinion, the halacha is as follows: If the stepfather is able to avoid listening to the girl’s singing and can distract himself, he certainly should do so. The Chafetz Chaim (Hilchos Lashon Hara 6) discusses this in the context of one who finds himself among people speaking lashon hara, and the Be’er Mayim Chaim (ibid. §14) expands this idea to hearing, seeing, and smelling in other prohibitions. Although he concludes that where there is a concern of ervah, the matter is more severe — as the Gemara (Bava Basra 57b) says, “If another path exists and one doesn’t take it, he is a rasha” — nonetheless, in our case it is clear that there is no alternative path: this is the home, and the girl naturally sings there.
Although one should generally refrain from hearing kol isha of one’s wife while she is a niddah—still, in this case of sha’as hadchak, where it is not possible to prevent a young child who naturally sings throughout the day from doing so in her own home, and her singing is not especially pleasant in a way that arouses the yetzer hara or leads to thoughts or looking, it would seem that one may rely on the lenient opinions.
This is especially so considering the leniency of the Chayei Adam and Hagahos Maimoniyos — that kol isha is prohibited only due to hirhur, and a voice one is used to is not considered ervah.
In summary:
If the stepfather is not drawn to the child’s voice, and it is not particularly pleasant or stimulating, and he is used to hearing her sing as a natural part of the household environment — and if he makes efforts not to focus on or derive pleasure from it — then there is room to be lenient in this unique situation. This especially applies when she is still young and her singing is similar to regular childish play.
However, if the girl becomes older and begins to sing in a manner that is musical or adult-like, or if the man feels it causes hirhur, then one should take greater care to distance himself from hearing her sing.