[By Rabbi Yair Hoffman for the Five Towns Jewish Times]

SOME YOUNG AMERICAN BOCHURIM studying in Yerushalayim have raised an intriguing problem.

The building was once called the Ner Yaakov Yeshiva and Kollel on Rechov Press, in the Geulah section of Yerushalayim. It is located across the street from the Brisker Yeshiva run by Rav Avrohom Yehoshua Soloveitchik Shlita. The building was sold a few years ago. Now, the building is the unofficial dormitory of the Brisk Yeshiva. Some young men attending the Yeshiva of Brisk stay in rented apartments. Others, however, stay across the street in the “unofficial dormitory.”

The boys in the dorm must pay a monthly rent of approximately $130. In addition, every two months, the costs of all the utilities are divided up and shared by all the dorm boys. On the bottom floor is a Bais Midrash which is rented out to a Yeshiva for Yerushalmis. The meals are provided for just across the street.

The low cost, the nearness of the Yeshiva meals, the close proximity to the Brisk Yeshiva where they learn – this is utter paradise! What could possibly be the problem?

The problem is that the dormitory is on top of a Beis Midrash. The Shulchan Aruch Orech Chaim (151:12) writes as follows: One must be careful from using an aliyah (an attic or second floor) that is above a Bais HaKnesses [this also includes a Bais HaMidrash] regularly for a use which is “legnai” – indecorous or unseemly. The Shulchan Aruch cites sleeping or lying down as an example of an unseemly activity. He further writes in Part B of this halacha that there is a question as to whether other types of activities are permitted in such a location.

The Ramah adds a qualification. He writes that this halacha only refers to a Shul which was initially established as a shul. However, in a building that was originally built as a regular building and only afterward established as a shul – there one may indeed lay down.

The Ramah’s leniency stems from a ruling of the Piskei Mahari. On this Ramah, however, the Mishna Brurah (OC 151:42), citing the Mogain Avrohom who cites the Kneseth HaGedolah, remarks that, nonetheless, one who is concerned for his soul should distance himself from this – especially in the section above the haichal.

And of late, this has become a widespread problem. With few exceptions, Yeshiva after yeshiva has built a floor above the Bais Midrash that is used for dorm facilities. Even though the Ramah permits it, the Mishna Brurah tells us that we should distance ourselves from it.

The Shulchan Aruch’s question in Part B about other types of activities is explained by the Mishna Brurah as being based upon the following question: Do we compare a shul to the Azarah in the Bais HaMikdash, in which case the upper sections do not retain a state of holiness? Or perhaps do we compare a shul or Bais HaMidrash to the Haichal of the Bais HaMikdash itself, in which case the upper sections would retain a state of holiness?

It is also interesting to note that if the upper section was built at the same time as the shul or Bais HaMidrash then it is certainly permitted. This is the ruling of the Mishna Brurah too. There is one caveat, though. And it is an important one.

The Mishna Brurah states, (as does the TaZ) that a use which is extremely unseemly, would also be forbidden even in such circumstances where the upper building was built at the same time as the shul or Bais Midrash. Examples of extremely unseemly activities are ones that smell horribly and if a gentile is performing Avodah Zarah there.

The reason for it is that somehow these things prevent the Tefillah from travelling up to heavenly realms. The TaZ compares it to the halachos of Amain found in Orech Chaim Chapter 55. He explains that even though an iron wall will not prevent prayers from reaching our Father in Heaven – this stuff will.”

What if it is several floors above the Bais HaMidrash? Would it be okay in such circumstances? The Avnei Naizer in OC #32 says that it is not.

One might point out that surely this is not a new question. The building must have been used as a dormitory beforehand. Surely there is room for leniency then. What was the rationale of the previous tenants or owners?

There is one opinion that must certainly be central to any lenient position espoused. The Aruch haShulchan writes that the issue is not a fully halachic issue, but rather a question as to whether one should make a commemoration of every “Mikdash Me’at” to compare it to the Haichal. This position would indicate that there certainly is room to be lenient.

The TaZ, however, in Orech Chaim 151:4 writes that when he was younger he and his children lived in his Bais Midrash in the city of Cracow, above a shul. He writes that he was punished severely and lost his young son [in an apparent fire]. He placed the blame on the fact that he lived above a shul.

The TaZ’s very sad narrative seems to indicate that he is not in agreement with the position of the Aruch HaShulchan and that he holds that this law is not a mere commemoration, but actual binding law. The language of the Kneseth HaGedolah is also somewhat frightening. He writes, “Whoever I have seen who has made a Bais HaMidrash in his house and he uses the floor that is above this Bais Midrash- did not succeed. Of them, some have lost their wealth, some have died, and some did not merit to be built.”

Is there no hope then for the young men on Press Street in Geulah?

The Steipler Gaon zatzal in Kreina D’Igrasa Vol. II #86 addresses the issue and writes that in our times in the big cities people are lenient and we may apply the expression, “The masses have already trampled here and Hashem watches fools..”

Rav Ovadiah Yoseph Shlita has a responsa (Yabia Omer OC VI #26) that one can be lenient on a third floor or above. The Shaivet haLaivi has a similar leniency in his responsa Vol. I #27. Both opinions seem to accept the Aruch HaShulchan’s underlying rationale. Indeed, the Mishna Brurah himself, seems to reject part of the TaZ’s halachic structure in comparing this to the case of Avodah Zarah and activities that smell horribly.

Dayan Weiss zatzal in Minchas Yitzchok Vol. II #48 seems to be stringent, however.

An interesting story comes to us from one of our readers in Kiryat Sefer.

“I moved into Kiryat Sefer the day it opened almost 17 years ago. For quite a few years all the shuls were in miklatim [bomb shelters] and there were some serious accidents, cholim etc. We went to Rav Chaim Kanievsky [the son of the Steipler Rav mentioned earlier] and asked him what type of tikkun [rectification] we can do. He asked us where the shuls are. Telling him that most of the shuls were located in the miklatim under apartments, he mentioned that his father was very makpid on this. Together with the builders of Kiryat Sefer and the gabboim, a date was set for all shuls to be moved into temporary caravans or permanent buildings.

I cannot tell you exactly how long ago this was but we are talking about at least 12 years ago. It gave us a push to get the shuls built. Also, until we did move out, Rav Chaim told us to cordon off the exact area where the bathroom was located on the floor directly above the shul and not to daven there. Rav Shteinman was also involved with this psak but I cannot tell you exactly what he said. [I] just know that he was also pushing for us to move out of the miklatim.”

The conclusions? There is room to be lenient, especially on a third floor. However, one who wishes to be stringent, a blessing will certainly come upon him.

The author can be reached at [email protected]