Monday, November 15, 2010

Ohver L'Asiyasan

Somehow I got myself subscribed to a daily email post called "Daily Halacha"(I think somebody did it for me!) It seems to be a Spring Valley based service to be "mezakeh ess harabim". It is a pleasure to receive these emails and I recommend it to everyone who wants to assure themselves as "bnei olam habah" based on the well known midrash:

תנא דבי אליהו: כל השונה הלכות בכל יום מובטח שהוא בן עולם הבא.

You can subscribe to it at: dailyhalacha@aol.com

The current series of Halachos is on the subject of Chanuka and here is today's serving:

1610. The opinion of the Mishnah Brurah (really the Rema - YH) is that one should be careful to complete all the berachos before beginning to light the first ner because the beracha needs to be o'ver la'asiyoson (before the act of the mitzvah). However, other poskim disagree, and some have the minhag to say the second beracha while beginning to light. Shulchan Aruch with Mishnahh Brurah 676:1, Sefer Halichos Yosef 676:1

The issue that this halacha focuses upon is a component of Hilchos Berachos that we call "ohver l'asiyasan" which tells us that Berachos are to be made before one fulfills the deed that the beracha is consecrating. The best translation that I could get for the term "Ohver" l'asiyasan is "on the way to" doing the mitzvah.

We understand from this that we must recite a Beracha before a mitzvah is fulfilled. If the mitzvah is done, it is too late to recite the beracha.

But the question arises: at what point is it too late? Is it when the mitzvah is begun to be performed or is it okay to recite the beracha as long as the mitzvah is not totally completed?

Well, let's look at the Halacha quoted above. We note that it adds that there are those who only recite the second beracha after they begin to light (yours truly follows this opinion). Is this not a breech in ohver l'asiyasan?

And the easy answer is to say that there is a big difference between these two brachos. And this is that there are really two miutzvos involved with lighting Chanuka candles:

(1) Lighting the candles (הדלקה עושה מצוה ) and (2) Pirsumei nisa.

The first beracha applies to the lighting itself and so, to satisfy ohver l'asiyasan, it must be recited before we even begin to light. The second beracha is for the Pirsumei nisa. But, still, doesn't it also require "ohver l'asiyasan"? Don't you have to recite it before we even begin to perform the Pirsumei nisa?

According to the Rema, this does indeed seem to be the case. But the other poskim do not agree. Perhaps, their position is that the Pirsumei nisa is an ongoing mitzva and as long as it has not been completed, one may still recite the Beracha. The obvious ramification of this perspective is that in case one totally forgot to recite any Berachos and fully lit all the candles, he may still be allowed to recite the second Beracha as long as the Pirsumei nissa is in effect. Even 1/2 hour after he lit. Though, in this case, he most certainly will not be able to recite the first Beracha. It seems that even the Mishna berura agrees with this as he writes that if one forgot to recite the Berachos, he nonethelass can still recite the second Beracha.

We see a similar Halacha regarding the 4 minim on Sukkos. We all know the Halacha to initially hold the esrog in the wrong position and then to recite the Beracha on the 4 minim and then to rectify the esrog. This is because, technically, once one holds all 4 minim properly he has already fulfilled the mitzvah and if the Beracha has not yet been said, it would be a problem of ohver l'asiyasan.

Nevertheless, the Halacha states that if one neglected to recite the Beracha and took the minim in their proper position, he may still recite the Beracha as long as he has not yet completed the na'anuim. Here again we see that, b'diavad, one can recite a Beracha as long as the mitzvah has not been completed even though it has been fulfilled.

Now, it is not the main purpose of this blog to give Halacha shiurim. So why is this relevant?

It relates to a very interesting post which I posted over a year ago (October 2009 - click HERE) concerning what is widely known as the Nefesh B'Nefesh proposal. In the post, I embedded a video of a young Jewish man propsing to a young Jewish lady in public. For convenience, I will repost the video (note - the video may not be visible to email recipients):




After wishing the dear couple a hearty mazel tov, I went on to pose the question as to whether this proposal actually constitutes a valid Kiddushin d'oraysa. To date, I haven't been able to get a conclusive ruling. Some scholars think it meets the conditions of Even HaEzer 27:1,2 and she would be definitely mekudeshet. Others said that it meets the conditions of Even HaEzer 27:3 and she would be "safek mekudeshet". And there were some (clear minority) who wanted to maintain that she is not mekudeshet at all.

The obvious question at the time was: what difference does all this make?

And the most serious answer is: in the event that they do not go through with the marriage, would she require a get?

So now may be a good time to report that I did attempt to follow up a bit on this couple and from what I could discover, they are currently happily married (auf lange yahrin) and we can breathe easy.

But there were some other minor issues as I wrote then:

Now, assuming this radiant couple follows through to a typical marriage ceremony in the near future - and there is every indication from their enthusiasm that they will, IY"H, there are not many major ramifications to this question. The main issue is: should they conduct the erussin at the wedding with reciting the Birkat Erussin or not. If the erussin already took effect, it would be a bracha l'vatala. Another ramification is that according to many authorities (not all) the requirement for a married woman to cover her hair may already be in effect.


Now, the issue of covering hair can be put to rest because it is generally held that this obligation begins after the chuppa. But the issue of the Beracha is a little more tricky. Most people typically said that if it is only "safek mekudeshet" there are grounds to say that we could still make a Beracha but on the opinion that it is a fully valid kiddushin, it would be a Beracha l'vatala to make a second Beracha.

Indeed, Harav Ephraim Greenblatt from Memphis, Tenessee had recently made aliya and currently lives in Har Nof, and I asked him this question last year. He agreed that there would not be another Beracha and he brought down some source which, presently, I do not recall. And so, this is how I saw the Halacha...until about 3 weeks ago.

3 weeks ago was Parshat Chayei Sarah - shidduchim week - and I was attending the weekly Halacha shiur given by Rav Asher Zelig Weiss, Shlit"a. Harav Weiss based his shiur on the topic of performing a kiddushin by way of a proxy (shalich) and posed the question: if somebody makes a shaliach for kiddushin, who should make the Beracha (note - even though we don't practice it this way today, the obligation of the Beracha is on the one performing the mitzvah, i.e., the chosson).

There is no need to burden my readers with the intricities of the shiur, but he did bring down one opinion that was a tremendous chiddush. He said that this comes from the Teshuvos HaRivash.

Somewhere in his teshuva, the Rivash states that when one makes a kiddushin via a shalich, when the couple meet each other later on, he should redo the kiddushin with a Beracha!

The difficulty here is obvious. If the woman is already Halchically betrothed, how can one "do it again" and what can justify making another Beracha?

So Harav Weiss went on to suggest that the Rivash agreed with the Rif that the shaliach certainly can not recite the Beracha and since the chosson is not present, he cannot recite one either. As such, the kiddushin is effected without any Beracha at all. So why not make the Beracha after the kiddushin?

Well, we all know that we can't do that because a Beracha must be recited ohver l'assiyasan. Once the mitzvah is performed, it's too late.

But, here Harav Weiss wanted to suggest what we have said earlier. Even though l'chatchila the Beracha should be said before one begins the mitzvah, b'diavad, the Beracha can still be said as long as the mitzvah has not been completed. And so, he wanted to suggest that until the chuppa (nissuin) takes place, the kiddushin has not been completed. It may have the same status as taking a lulav but not yet doing the na'anuim or as the Beracha of SheAssah Nissim that we discussed here. Accordingly, as long the beracha has not been said at all, it can be said when the chosson does a "reenactment" before the chuppa.

Now, if this holds true, there is no reason not to apply it to our incident as well. And so, at least according to this opinion, it would appear that there is nothing wrong with making a belated Beracha at the "second" kiddushin even if the original kiddushin was 100% valid!

That said, I still want to leave my readers with the following Beracha:

May none of us ever need to make a kiddushin more than once.


ה' חפץ למען צדקו יגדיל תורה ויאדיר

2 comments:

Mike S. said...

What are the nature of the brachos you are talking about? The second bracha of Channuka is not a birchat hamitzva but one of hodaya (as is shechianu on the first night) Thus, even the Mishna Berura holds that one recites it even if one only remembers to make brachos after completing the lighting in its entirety.

The nature of the birchat eirusin is a matter of controversy among the posekim. It may be a bircat hamitzvah (it sounds like one) but if so it would seem to be on the issurei arayos that come with eirusin which would make it a bircat hamitzva on lavin (see Aruch Hashulchan's discussion)

Dov said...

First, over la'asiyasan isn't me'akev, and in fact we sometimes pasken backwards lechatchila, e.g. some deios for YomTov candles. If we pasken that way lechatchila when there's a reason to, it can't be that over la'asiyasan is me'akev bedi'eved.

But second, the whole question appears wrong, because anyone who lives in the USA knows that their kavana was specifically NOT for kiddushin, but rather for an engagement in the modern sense of the word, and the act that was done was nikar to all as an act of modern proposal and NOT nesina le'shem kiddushin.