Ma’aser B'haimah

At the conclusion of this week’s parsha (27:32) the Torah discusses the obligation to give ma’aser (tithe) from one’s animals. The newborn cattle are put into a corral with a narrow opening big allowing for only one animal to leave at a time. As the animals leave they are counted, and every tenth one is marked as ma’aser to be given to a kohen.
The Mishnah in Bichoros( 58b) discusses a scenario where during the counting before the owner had reached number ten, one of the animals that were already counted jumped back in to the corral and he cannot distinguish between the animals. The Mishnah says that all the animals are exempt from ma’aser. The Gimorah in Baba Mitzeia (6b) explains this ruling based on a drasha from the passuk “hasiri yiheye kodesh l’Hashem”. The Gimorah explains that the Torah requires that one be certain that the tenth animal is the tenth. If there is any doubt that this animal is the tenth it is not ma’aser (asiri vadai vilo asiri safek). Additionally once an animal was counted it cannot be counted again. Since he cannot distinguish between the animals he might count the animal that was already counted, thereby making it impossible to count with certainty. Therefore all of the animals are exempt from ma’aser since we cannot ensure that any of them will be the definite tenth one out of the corral.

The shita mikubetzes in Baba Mitzeia (6b) cites a R"Ash that asks: why does the Mishnah say that since the animals cannot be counted precisely all of the animals in the corral exempt from ma’aser, why can’t we apply the rule of kal d’parish mairuba parish- if something separates from a group we can assume it belonged to the majority of the group? Since the majority of animals in the corral were not counted, as each animal separates and passes through the door of the corral we should assume that it was never counted, thus enabling the animals to be counted properly and be obligated in ma’aser.

The R"Ash answers that although the Torah allowed us to rely on a rov (majority) in most scenarios, nevertheless it remains a safek (doubt). Therefore with regard to ma’aser where the Torah requires that we know with certainty that the tenth animal is the tenth we cannot rely on a rov.

Reb Akiva Aiger (in tishuvos tinyana 108) asks the following question: An animal that is a traifa is exempt from ma’aser. The only way to know that an animal is not a traifa is to rely on the rov that most animals are healthy and not traifos. However according to the Rush that said that even though the Torah allowed us to rely on a rov it still remains a safek how can we ever have an animal that is obligated in ma’aser? We will not know with certainty that it is the tenth since possibly the first nine were traifos. And even though there is a rov that says that they were not traifos according to the Rush that is not considered knowing with certainty.

The Shev Shimaitza (2 :15) answers that there are two different types of rov; ruba dilesa kaman, and ruba dieisa kaman. A ruba dilesa kaman refers to tendencies in nature or habit. For example that most animals are healthy and not tiraifos, or that most babies born are healthy, or that most people who will shecht(slaughter) know how to do so properly. A ruba dieisa kaman refers to the majority of present chances. For example if there are ten pieces of meat of which nine are kosher and one is not and one is selected the rov says it is a kosher piece of meat.

The Shev Shimaitza says that the Rush only said that even after applying a rov it still remains a safek regarding a ruba dieisa kaman such as in the case of the animal that was counted that jumped back into the coral. Whereas regarding a rov such as the rov that most animals are not tiraifa which is a ruba dilesa kaman the Rush would agree that in applying the rov there remains no safek and one can be certain that it will be from the rov. Therefore regarding the doubt if the animals are tiraifos we can say with certainty that they are not traifos and therefore the tenth animal is with certainty the tenth and thus obligated in ma’aser.

{R.F.}

Sefirah and Aleinu

We count siferas haomer at the beginning of the night at the conclusion of Maariv. There

are different customs regarding the proper order in which to recite the counting of sefiras

haomer; before or after Aleinu.

The sefer Sharai Rachamim from the Vilna Gaon says that one should first say Aleinu and count siferas haomer afterwards. The Chak Yakkov (489:20), and the Pri Migadim (A”A 489:15), and the Mishnah Birurah (489:2) say that the proper order is to count siferas haomer first and then to say Aleinu.

In order to better understand the basis for this machlokes we must look at the origin

of the custom to say Aleinu at the end of davening. Was Aleinu instituted to be the

conclusion of each Tefila, or was it instituted to be the last prayer that we recite prior to

leaving the shul?

The Bach in Orach Chaim 133 explains that Aleinu was added at the conclusion of

davening before people left the shull in order to instill faith of the Oneness of Hashem’s

kingship, and in order to strengthen our emuna that He will one day remove idolatry from the earth, thus preventing Jews from being tempted to follow the beliefs and lifestyles of the nations among whom they dwell and engage in business with. It seems clear that the Bach is of the opinion that Aleinu was instituted primarily as the last tefila prior to leaving the shul.

The Sharei Teshuva in Orach Chaim 233:1 cites the Ar”i z”l that one must recite Aleinu

after each of the three tifelos of the day. The Ar”i z”l seems to hold that Aleinu was

instituted as part of davening.

The Chasam Sofer was accustomed not to say Aleinu after Mincha on erev Shabbos

since we remain in shul for Maariv. This is in accordance with the Bach that said Aleinu

was instituted as the last tifela prior to leaving the shull. It is for that reason that we do

not say Aleinu after Mussaf or Mincha on Yom Kippor, since we do not leave the shul

after these tefilos.

Perhaps this is the reason why many have the custom not to recite Aleinu after Shacharis
on Shabbos, even though it is the end of a tefila, since we do not leave the shull until

after the conclusion of the next tefila; Mussaf. There are those that have the custom to

say Aleinu after Shacharis on Shabbos and to repeat it after Mussaf. This custom is in

accordance with the opinion of the Ar”i z”l that Aleinu was instituted as a part of each

tefila. It is possible that even the custom of not saying Aleinu after Shacharis on Shabbos

is in accordance with the Ar”i z”l, since we daven Shacharis and Mussaf together they are

considered as one tefila therefore one need not say Aleinu after Shacharis.

Based on this, the sefer Harirai Kedem explains that we can understand the machlokes

regarding the proper order in which to count siferas haomer in respect to Aleinu. If

Aleinu is a part of tiffela then it should precede counting siferas haomer, since siferas

haomer is a mitzvah that can be performed after maariv as well we can apply the rule of

tadir v’sheaino tadir tadir kodem- the more frequent precedes the less frequent. As Aleinu

is a part of maariv and maariv is more frequent, the entire maariv (including Aleinu)

should precede counting siferas haomer. Whereas if Aleinu was instituted as the last

tefila said prior to leaving the shul then one should first count siferas haomer and allow

for Aleinu to be the last tiffela said prior to leaving the shul.

I thought that perhaps this is the basis for the different customs regarding the order in

which we recite Aleinu and the shir shel yom at the conclusion of Shacharis each day.

Most people who daven Nusach Ashkenaz recite Aleinu after ashrai uva litzion which is the conclusion of the tefila. They say the shir shel yom following Aleinu.

Sefardim and those who daven Nusach Sefard recite the shir shel yom

first and Aleinu last.

Nusach Ashkinaz seems to be in accordance with the Ar”i z”l that Aleinu is a conclusion to the tefila. The Sefardim and Nusach Sefard seem to go in accordance with the Bach that Aleinu is to be said as the last tefila prior to going out among the nations which we dwell between. This is interesting as it is usually Sefard that follows the customs of the Ar’i z”l and not Nusach Ashkenaz, here we see the opposite.

{R.F.}

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