Mishna Berura
Yeshivat Har Etzion

SHIUR #42: Simanim 70 - 71

Pages 207-210

by Rav Asher Meir

SIMAN 70 - INDIVIDUALS NOT OBLIGATED IN KS

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1.  Keriat shema as a means of accepting God's sovereignty

            We learned last week that KS is a kind of "omnibus" fulfillment: every obligation which can be fulfilled by saying KS should preferably be carried out that way.  For instance, the Amora Shemuel holds that de-oraita there is no requirement to read KS morning and evening but only to read from the Torah then.  Even so, of all the portions in the Torah one should preferably read KS.  Likewise, someone who has already fulfilled or already missed the mitzva of KS but needs to fulfill the mitzva of remembering the Exodus, should do so by saying KS.

            This week continues with the "meta-mitzva" of accepting God's sovereignty.  A previous shiur cited the mishna (at the beginning of the second chapter of Berakhot) which explains that this obligation is a prerequisite to accepting the commandments.  This obligation, too, should ideally be fulfilled by reciting KS, even for those who are exempt from KS per se.

2. EDUCATION OF MINORS

            Surprisingly, nowhere in the Shulchan Arukh is there an explicit GENERAL commandment to accustom children to perform commandments.  Rather, the subject appears in various SPECIFIC contexts:

Tzitzit (OC 17:3); tefillin (37:3); fasting on Yom Kippur (616); sukka (640:2); lulav (657); Chanuka lights (667:2); megilla (689:1); learning Torah (YD 245:5).  (The list is copied from the Ein Mishpat on Nazir 29a.)  In CM 280:15, a long list of particulars appears.  (This source is not in the Ein Mishpat, evidently because it deals with a guardian and not a parent.  The underlying obligation, however, seems to be identical.)

            In the Talmud, a general formulation evidently appears only once: on Nazir 29a, as an explanation of why according to the mishna there a father's oath - but not a mother's - obligates the son to conduct himself as a Nazir:

            "He supposes that a man is obligated to accustom his son in the commandments, but a woman is not obligated toaccustom her son."

            Regarding the fact that the mishna does not obligate the daughter, the gemara postulates: "he must accustom his son, but not his daughter."  From the continuation of the passage it is clear that the obligation is only rabbinical.

            However, the gemara does not bring any specific source for this general obligation; it is only postulated to explain our mishna.  Furthermore, the gemara seems to reject this explanation altogether and adopt the alternative explanation, namely that there is a special "halakha le-Moshe mi-Sinai" regarding nazir, and this is the ruling of the Rambam (Nazir 2:14).

            So it seems that we are left without any source for a general obligation, and can only extrapolate from the numerous explicit examples found in the Talmud.  We also have no basis to assume that the requirement is not relevant to women or girls, since this distinction was only introduced to explain an anomaly in the mishna in Nazir, and the distinction is rejected.

            Of the many specific cases brought, the most encompassing formulation is a beraita on Gittin 52a, regarding an apotropos (legal guardian of orphans).  The beraita explains that the guardian must purchase, using the orphan's funds, every mitzva object which has a fixed price, including lulav, mezuza, sefer Torah, and so on.

            Another broad formulation is on Sukka 42a:

            "A minor who knows how to wave [a lulav] is obligated in lulav; to wrap himself, is obligated in tzitzit; to take proper care of tefillin, his father must take tefillin for him; if he knows how to talk, his father teaches him Torah and KS."

            It is evident from this beraita (as well as from other passages, see Yoma 82a, Sukka 28a) that the distinction made in a few places in the Shas between "higi'a le-chinukh" and "lo higi'a" - between a minor who has and one who has not reached the age to be accustomed to mitzvot - is not referring to some fixed age of "reaching chinukh."  Rather, the extent of the requirement to accustom the youngster depends on his age and development and on the demands of the particular mitzva.  It also seems that this beraita agrees with the postulated formulation in Nazir that the obligation of the child is really that of the parent to accustom him.

            From the beraita in Sukka we also learn that a child needs to be educated in KS, but the gemara in Sukka explains that this refers only to the first verse - which is logical for a child who has just learned how to talk!

            Now we can understand the disagreement between Rashi and Rabbenu Tam mentioned here in the Shulchan Arukh.  RASHI understands that the mishna (Berakhot 20a) asserting that a minor is exempt from KS is referring even to one who has reached chinukh - for it is obvious that a minor who has not reached chinukh is exempt!  But Rabbenu Tam learns from the beraita in Sukka that even an infant - who is obviously not of the age of "chinukh" - is required to say the first verse, so it makes sense for the mishna in Berakhot to tell us that we do NOT obligate him to say the whole KS.  However, a youngster who HAS reached the age of chinukh needs to say KS just as he needs to perform any other mitzva which his age and development permit.

SIMAN 71 - INDIVIDUALS WITH AN EXEMPTION FROM KS

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EXTENT OF A MOURNER'S EXEMPTION FROM KS (and other mitzvot)

            We learned in the previous siman that one who is occupied with a mitzva is exempt, under certain conditions, from other mitzvot, including KS.  As the MB (s.k. 18) points out, this exemption is not complete.

            A mourner is also subject to this exemption, since taking care of a burial is also a mitzva.  However, the exemption for a mourner is a distinct category which goes far above and beyond the standard exemption.  There are many differences in the halakha.  Examples:

1.  What if the person is merely responsible for the mitzva but is not actually occupied?  Compare SA 70:4 to SA 71:1.

2.  Is the exemption mandatory?  Compare SA 70:4 to SA 71:1.

3.  What happens if the person performs the mitzva anyway?  Compare MB 70:18 with MB 71:3.

4.  What if the person had an opportunity to perform the mitzva before he became preoccupied and evidently exempt?  Compare MB 70:17 to MB 71:4 at the end.

REASON FOR A MOURNER'S EXEMPTION FROM KS (and other mitzvot)

            The reason is mentioned in MB s.k. 5.  One explicit source is Semachot (a tractate of beraitot dealing with mourning) at the beginning of chapter 13.  The subject of the beraita is the formerly common custom to bury the departed temporarily, and after the body had decomposed to reinter (rebury) the bones in a family tomb.

            "One who reinters bones is exempt from KS and from prayer and from tefillin, and from all the commandments of the Torah, and [even] if he wants to be stringent on himself he may not, BECAUSE OF RESPECT FOR THE BONES."

            In other words, the exemption from KS is not a mere concession, but rather a positive requirement, a demonstration of respect for the dead.  This understanding is certainly implicit in the words of the beraita and is also evident from the context, since one who reinters bones is not technically a mourner and is really not even an "osek be-mitzva" since there is in general no mitzva to reinter.  The respect and awe due to the dead extends even to their remains, and even performance of God's commandments could seem inappropriate in their presence.

WHO IS CONSIDERED RESPONSIBLE FOR THE BURIAL

            The Shulchan Arukh talks about a relative who has someone else to worry about the burial.  The MB (s.k. 4) discusses handing the departed to the burial society (chevra kadisha).  It is not obvious from the text that two completely different situations are being discussed:

            The SA discusses a relative who shares (see MB s.k. 2) responsibility for the departed, but has delegated this responsibility to someone else.  This person has practically shifted the worry, but fundamentally he is still responsible and is really EXEMPT from KS.  The SA discusses whether he MAY say KS anyway.

            The MB is talking about a relative who IS worrying about the burial.  Transmitting the departed to the burial society is not a delegation of his responsibility, but rather the discharge of his responsibility.  From the moment that all the details are concluded with the chevra kadisha, the departed is considered to be actually buried, and the relative is FULLY OBLIGATED in KS.

LIMITATIONS IN THE PRESENCE OF THE DEPARTED

            The exemption mentioned in SA 71:1 covers all obligations and all locations; that in 71:7 covers only a few obligations and only a particular location.  This can be related to the different reasons for the exemptions: the one mentioned in MB s.k. 5 and that mentioned at the end of s.k.15.