by Rabbi Yair Hoffman for the Five Towns Jewish Times

“LISTEN, BOYCHIK, VEN I VAS much younger in da Bronx, the Ruf of de shul of Bais Shraga allowed it. Dat’s gut enuf for me. If its gut enuf for Maariv it should be gut enuf for sfiras ha’omer.”

“The Mishna Brurah says that when the mechaber says mib’od yom its referring to after Bain HaShmashos.”

“Look the Vilna Gaon says it’s okay.”

These are the types of discussions that often occur in the larger shuls in New York, when there are multiple minyanim on an erev Shabbos. The Rav cannot be everywhere, and at times people are unaware of his ruling for a Sfiras HaOmer when Maariv ends well before the sunset. So what is the story with early Sfiras HaOmer?

THE WORDS OF RAV KARO IN SHULCHAN ARUCH

The exact issue, of course, dates back to the times of the Rishonim. The Rosh in Psachim (10:40) rules that when it is not certain darkness one can still recite the blessing. The Rashba in a responsum (Vol. I #154) disagrees. In the Machzor Vitri that discusses Rashi’s practices it says that

The Maharil (Siman #13) writes that one may not recite a blessing on Sfiras HaOmer while it is still day.

Even though there are various views among the Rishonim, the general rule is that we follow what is written in Shulchan Aruch by Rav Yoseph Karo. In this case, however, the exact interpretation of the Shulchan Aruch’s words are a matter of much debate. The Shulchan Aruch (OC 489:3) writes as follows:

One who Davens with a congregation mi’b’od yom – counts with them without a bracha. If he remembers at night he makes a bracha and then counts.

WHAT DOES Mi’B’OD YOM MEAN?

The debate centers around what these two words mean in the Shulchan Aruch. Do they mean what they mean in contemporary usage- “while it is still day” – before the sun has set? Or perhaps they should be understood to mean Bain HaSh’mashos, twilight, which was considered “still day” during his time?

Some of the great Achronim understood Rav Karo to indeed refer to daylight – that his case refers to when one had davened Maariv and it was still before the sun had set. These Achronim are the Levush, the Eliyahu Rabbah, the Chavos Yair, the Maamer Mordechai and the Nehar Shalom. They understand the words Mi’b’od yom as referring to anytime after 10 and 3/4 hours of the day – Plag Mincha.

Others have explained that Rav Karo is referring to the time of twilight where it is neither day nor night. This is the explanation of the Vilna Gaon and others. This is the view that the Mishna Brurah accepts.

HOW EARLY SHABBOS WORKS

There is a wide debate as to whether Tosefes Shabbos, adding onto Shabbos, is a biblical concept. If it is biblical, then when one makes Shabbos early, it is actually Shabbos from a biblical perspective too.

THREE MAIN OPINIONS

The Rosh (Psachim 10:2) and the Ohr Zaruah (Hilchos Erev Shabbos 14) hold that early Shabbos is biblical, while the Rambam (Shabbos 29:11) holds that it is only Rabbinic. The Mordechai (Megilah 2:798) holds a middle ground position that adding onto Shabbos before Shabbos it is Rabbinic but adding onto Shabbos after Shabbos – is biblical.
 
A FASCINATING RAMBAM

We also find another approach in the Rambam itself (Shabbos 29:11). He writes, if we read him carefully, that the obligation of Kiddush, emanating from “Zachor es Yom HaShabbos LeKadsho – remember the Shabbos to keep it holy” may even be fulfilled slightly before Shabbos.

Yes, that’s right. The Rambam writes that one fulfills the obligation of Kiddush – even before Shabbos – but only a slight amount before Shabbos.

THE RABBI YEHUDAH APPROACH

There is another approach that we find in Tosfos, both in Brachos (27a “D’Rav”) and in Psachim (99a “Ad”). The Tosfos write that one fulfills the Mitzvah of Kiddush when recited early, according to the position of Rabbi Yehudah. If we recall, there is a famous debate when is the last time one may daven Mincha and when is the earliest time one may daven Maariv (Mishna in Brachos 26a).

According to Rabbi Yehudah we may only daven Mincha until Plag HaMincha (10 and ¾ hours of the day) and we may begin Maariv immediately after Plag HaMincha. According to the Chachomim we may Daven Mincha until evening and we may only daven Maariv after evening – not before. How do we ultimately rule in the debate between Rabbi Yehudah and the Chachomim? We rule like either one of them, according to the Gemorah – (but not both in the same day, as well will explain later).

According to the simple reading of Tosfos – it seems that early Kiddush on Friday night is only according to Rabbi Yehudah and not the Chachomim.

Thus, there are three explanations as to how it works. The first is that Tosefes Shabbos is biblical, the second is that the Rambam holds the Mitzvah of Kiddush can be made even before biblical Shabbos. And the third is that it goes in accordance with Rabbi Yehudah and we may Paskin like him.

As far as these three answers, how do we Paskin?

The Mishna Brurah paskins that Tosefes Shabbos is deoraisah – biblical. Therefore, there would be no need to re-recite the Kiddush if it was recited before sundown.

BUT SHOULD WE DO IT?

The above discussion concerned how the concept operates. Another question arises, however, as to whether to do it or not.

The Kuntrus Eitz Chaim (p. 154) cites the Baal HaPardes (brought down by Rav Moshe Shternbuch in Teshuvos v’Hanhagos II #51) that when one makes a late Shabbos during the summer months, one violates the Torah prohibition of Tzaar Baalei Chaim to one’s wife and little children. It is unclear whether Rav Shternbuch is truly of this opinion or whether he is exaggerating the point to ensure that the husband will comply. The Aruch HaShulchan further writes (OC 267:4) that communities should make early Shabbos in order to avoid Shabbos violations.

Rav Elyashiv zt”l (Kovaitz Teshuvos Vil. I #23), on the other hand, writes that in Eretz Yisroel all effort must be expended not to daven before the correct time [unless there are extreme circumstances]. Rav Shlomo Zalman Auerbach (Halichos Shlomo Tefilah 14: note 10) was less emphatic than Rav Elyashiv but did recommend that in Eretz Yisroel, Bnei Torah should refrain from davening Maariv earlier.

DAVENING EARLY IN GENERAL

As far as davening earlier on Fridays, in general, there is the debate we have just mentioned between Rav Yehudah and the Chachomim. The Gemorah tells us that one may choose any opinion – either like Rabbi Yehudah or like the Chachomim.

Most Rishonim understand the Gemorah that we cannot be inconsistent. We cannot do a tartei d’sasrei – an internal contradiction by ruling like both opinions in the same day. We cannot daven Mincha after Plag in accordance with the Chachomim and then daven Maariv before evening like Rabbi Yehudah.

Some people are careful to always daven in accordance with the Chachomim. However, the Mogain Avrohom points out that on Shabbos one may daven earlier like the opinion of Rabbi Yehudah because there is a Mitzvah to add onto Shabbos from the week. One should be careful, however, to daven Mincha before the Plag.

The Mishna Brurah (267:3) cites the opinion of the Derech HaChaim that when dealing with a Tzibbur one may be lenient and daven Maariv while it is yet day even though one has davened Mincha after the Plag. The Mishna Brurah, however, rejects this position (in both the Mishna Brurah and the Biur Halacha). He writes that it would only be permitted b’shaas hadchak – when one is in a bind and even then the Maariv must only be said during Bain HaShmashos at the earliest.

It is interesting to note that numerous shuls, for some reason, are going with the Derech HaChaim during these summer months rather than the Mishna Brurah. Since regarding all other issues we generally rule like the Mishna Brurah, a question arises: How can they do this?

One rationale perhaps is that they feel that they are not really arguing with the Mishna Brurah so much. Firstly, the shuls that do it, do feel bad about it. The reason they are lenient is because people do not want to start the Friday evening meal so late. It may take away from their oneg Shabbos. Rashi in Yevamos (93a) writes that Oneg Shabbos is a biblical obligation, as does the Rashba both on Yevamos and in his responsa (1:127). The Rivash (Responsa 513) also rules that it is biblical. Even though the Rambam (Shabbos 36:1) holds that it is only Rabbinic, the views of the other Rishonim, may make it fit into the criterion of Shaas Hadchak. It could be that in Europe, from an economical and logistical point of view – it was not viewed as oneg Shabbos to accept Shabbos earlier.

But what about the Maariv part during Bain haShemashos?

Many of those shuls that make early Shabbos and are not careful to daven Mincha before the Plag still do not daven maariv during Bain HaShmashos.

How can they do this? Perhaps they may rely on a number of factors too – a] The first Tosfos in Brachos “VeAimasai” as well as the Rashba there seem to hold that one is permitted to do an action that contains the internal contradiction in regard to Tefilah. Even though this position is rejected by the Mishna Brurah (MB 233: and 235), this view may be perhaps used in conjunction with other views. B] It could be that the aforementioned ruling of Tosefes Shabbos being a biblical concept may change the issue of Maariv and allow it to be recited early. C] It could be that we may accept the view of the Derech HaChaim on account of the Shaas Hadchak.

This is not to suggest that a shul should do this ideally, it is just to provide a limud z’chus for those that do it.

It should also be noted that there are two ways to calculate the Plag Mincha. According to the Gra, Plag HaMincha is calculated as 10 and ¾ hours between sunrise and sunset. According to the Mogain Avrohom it is calculated as 10 and ¾ hours between dawn and star out.

When this author posed the question to Rav Dovid Feinstein a number of years ago, he suggested that a shul may use either Plag mincha and it would not be considered Tartei D’Sasrei an internal contradiction.

THE IDEAL TIME FOR MINCHA

There is also another issue, and that is when is the most ideal time to Daven Mincha. The Shulchan Aruch rules (OC 233:1) that the essential main time in which Mincha should be davened is from Mincha Ketana onward – that is from 9 and ½ hours onward.

The Mishna Brurah (233:1), however, cites Rishonim that hold that one may even daven ideally at Mincha Gedolah, which is at 6 and ½ hours of the day. Indeed, the Shaar HaTziyun (233:3) cites the Vilna Gaon as agreeing to this position as well.

The author can be reached at [email protected]