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

Once, a number of years ago, there was a minyan for an Avel somewhere in Suffolk County. There were only ten people present, one of them was a Rav. The Rav realized that the minyan was barely a minyan and that one of those that were gathered was disqualified in being counted for a minyan. The Rav announced that there are about 24 times when a minyan requires eleven and not ten, and that this is one of those times. After trying for an eleventh for the next fifteen minutes or so, the situation became futile and the gathered people left.
What was the reason? One of the ten people was a Jew for J. The Mishna Brurah rules that such a person is ineligible to be counted.

THE AIRACHIN GEMORAH

I once had a remarkably fascinating conversation with my Rosh Yeshiva, Rav Henoch Leibowitz zatzal regarding Rav Moshe Feinstein ’s understanding of the Gemorah in Airachin (15a). Rav Moshe’s view is discussed in Igros Moshe Vol. I #23 (and other places too). The Gemorah states that the spies said the words, “Ki chazak ho memenu.” The Gemorah says, do not read it memenu – but render it as memeno – It is greater than Him.

RAV FEINSTEIN’S UNDERSTANDING: SPIES WERE HERETICS

Rav Moshe understands this Gemorah that, no “ifs, ands or buts” – the Meraglim, the spies, were full-blown Apikorsim – heretics. And yet still, they are considered an Aida – a congregation. From here, Rav Moshe Feinstein extrapolates that in order to be considered an Aida – a congregation, there is no need not to be a Kofer. A kofer could thus be counted for a minyan , writes Rav Moshe. There is another ramification as well. In order for a person to be a public Shabbos violator, there is no need for ten religious Jewish people to be the “public.” Any ten Jews will do.

RAV LEIBOWITZ: SPIES’ SIN WAS VERY SUBTLE – DAKEI DAKOS

My Rosh Yeshiva disagreed with Rav Feinstein on his understanding of the Gemorah. He explained that the sin of the Meraglim was not full-blown but rather within the parameters of the concept of “Dakei Dakos – infinitesimally small and barely detectable.” This being the case, there are two ramifications – 1] A heretic may not be counted, and 2] In order to make someone a public Shabbos violator he must do so in front of ten Shabbos observing Jews.

CONCEPT OF DAKEI DAKOS

The Yeshiva world has always understood the sins that are discussed about the great people in Tanach in a similar fashion, and that the Torah will exaggerate the sin of a great person – because regarding such a great person – it is as if we had this much larger sin. Thus, when Avroho Avinu says the words “B’mah aidah ki ershena es ha’aretz” he was not expressing doubt as to Hashem keeping His promise – he was just asking for the specific sign that Hashem would give him. Why then was he punished? The Alter from Slabodka explains that he was not so sensitive as to avoid using a language or expression that might connote doubt as to whether Hashem will keep his promise. It is this insensitivity to the proper use of language that caused the punishment and our exile into Mitzrayim. This is the concept of Dakei Dakos.

BACK UP FOR RAV LEIBOWITZ’S READING

The Chofetz Chaim zatzal (Shmiras HaLashon 2:19), great-great uncle of Rav Henoch Leibowitz zt”l, has a different understanding of that Gemorah than does Rav Moshe Feinstein zt”l. He writes, in contrast to Rav Feinstein zt”l: “Certainly, the spies did not deny the power of the Holy One Blessed be He. Rather, they thought that since for a great matter such as this, to beat out a nation of warriors and giants like these, a miracle would be required, they did not believe that HKBH would perform miracles for the nation of Israel after they had sinned. That which they said, “Kav’yachol He cannot take out His kailim from there” their intent was, “when does HKBH drive out a nation (take out His kailim?) When he finds a different one that is better than that one. But after we have sinned great sins regarding the Golden Calf, and Basar Taavah, He will not have us overcome great nations like these. And that which Hashem promised to give us the land that was only if we merited it if the framework of being Tzaddikim..”
The Pninei Tefillah page 125 cites Rav Elyashiv zatzal as disagreeing with Rav Feinstein’s ruling of the Gemorah in Airachin as well.

ALPHABETICAL LISTING

What follows below is an alphabetical listing of who may and may not be counted for a minyan of ten. The rulings may be controversial and perhaps insulting to some. However, they are based on the Mishna Brurah and the rulings of contemporary Poskim and represent normative Orthodox Jewish law. Of course, one should check with their own Moreh Horaah for halacha l’maaseh.

Androgynous – An androgynous may not be counted for a minyan (See MB 55:3). However, it might be necessary to further define what constitutes a true halachic androgynous. The Maharam Shik (Responsa OC 32) rules, however, that under extreme situations (B’Shaas HaDchak) an androgynous may be counted in a minyan. When Rav Elyashiv zt”l was asked whether one may rely on the Maharam Shik by his son-in-law (Shiurei Torah LaRofin Siman 265), he said that in extreme situations, such as when the minyan might fall apart otherwise, one may rely on it.

Apikores – An Apikores may not be counted for a minyan. This is whether he denies the written Torah or the oral law (See MB 55:47).

Child – a Child may not be counted (SA OC 55:4).

Crazed Person – may not be counted (55:8). However, if he is sometimes normal and sometimes not – when he is normal he may be counted. There are various views as to what is considered a Shoteh (crazed).

Deaf Person Who Cannot Speak – A deaf person who cannot speak even if he was born normally may not be counted for a minyan (SA OC 55:8 and BH “Hu”)

Deaf Person Who Speaks but doesn’t hear– A deaf person who can speak but cannot hear may be counted for a minyan but he may not be counted for a minyan for the Torah and he may not be the Shliach Tzibbur ( SA OC 55:8. See also BH Siman 156 “v’Likros” for his disqualification for Shliach tzibbur). If he can hear through equipment then he may be counted for all.

Drugged Person Who Cannot Speak Before the king – May not be counted (MB 99:10)

Drunk Person Who cannot speak before the king – May not be counted (MB 99:10)

Half-Slave – A half-slave who is a half a free man and half a slave may not be counted for a minyan (MB 55:3).

Karaite – May not be Counted (MB 55:47).

Menudah Under the Ban for Monetary Issues – may be counted (BH 55:12 “Menudah”)

Menudah Under the Ban for Sinning – may not be counted (BH 55:12 “Menudah”)

Menudah Under Ban for violating Gzeiras Tzibbur – may not be counted (BH 55:12 “Menudah”). This is someone who has been placed under Cherem. Someone under a siruv froman accepted Beis Din for not giving a Get falls under this category.

Mourner – a mourner within shiva may be counted for bentching and for Tefillah (See MB 55:24). Although some question whether he may be counted for a minyan for the reading of the Torah since he is forbidding in learning Torah, common practice is to allow it. He may hear the reading but not delve in it.

Mumar for Avodah Zarah – A mumar for Avodah zarah may not be counted for a minyan (MB 55:46). Anyone that does not believe in the Oneness of Hashem is not to be counted for a minyan (Vilna Gaon on Tikkunei Zohar, Tikkun 21 Page 42 ). Any Jewish believer in Christianity of any form may not be included in a minyan.

Mute – A mute person who can hear but cannot speak may be counted for a minyan (See SA OC 55:8). Indeed, it would seem that eve two mutes may be counted in the minyan (See Rav Shulchan Aruch).

Onain – An Onain may not be counted for a minyan if the burial arrangements have not yet been made (MB 55:24, 199:9). He is also not counted for Zimun.

Shabbos Violator – A public Shabbos violator may not be counted (MB 55:46). Rav Shlomo Zalman Auerbach zt”l (Minchas Shlomo Vol. II 4:10) writes that one should avoid doing so. There are those who are lenient when the Shabbos violator would be embarrassed to violate Shabbos in front of a great man (Rabbi Ben Tzion Abba Shaul in Ohr L’Tzion Vol. II #5). [See also MB 385:6.] This may also be true if they are embarrassed to do so in Shul itself. The Chazon Ish (see Maaseh Ish Vol. II page 93) allowed a Shabbos violator an Aliyah to the Torah as well. Rav Dovid Tzvi Hoffmann in Melamed L’Ho’il (Vol I #29) writes that if it is known that the Shabbos violator believes in Hashem, one may rely on the ruling of the Binyan Tzion (Vol II #23) that he does not have the status of a gentile. He further writes, however, if one can avoid doing so by davening elsewhere without embarrassing the person one should do so and not rely upon this leniency.

Sinner Out of Spite – May not be counted (MB 55:46).

Sinner on Account of Desire – May be Counted (SA OC 55:11)

Slave – A slave may not be counted (SA OC 55:4).

Sleeping Person – It is a debate whether a sleeping person may be counted as one of the minyan of ten. The Mechaber holds that he can, but the Mishna Brurah (55:34) cites opinions who rule otherwise. The MB rules that for Zimun and Chazaras HaShatz one should wake at least to the point where he is groggy. For Kaddish and Kedushah one can be more lenient but only if it is just one of them. If there are two people sleeping, one may not count them. For Krias HaTorah and Megillah reading all agree that a sleeping person does not count. For Birchas Kohanim it is unclear.

Someone Still in Shmoneh Esreh – may be counted (MB 55:33).

Tinok Sh’Nishba – A child that was raised in a manner where he did not know better and he does not observe Shabbos may be considered as a “kidnapped child” and may be counted in a minyan, but only if he was not exposed to Torah. Thus a Yeshiva dropout may not be included in a minyan if he no longer observes Shabbos. A Russian Jew who was not exposed to a Yeshiva education, however, can be counted (Pninei Tefillah citing Rav Elyashiv page 127.)

Tumtum – a person with undeveloped genitals and his or her genitals cannot be determined may not be counted for a minyan (SA OC 55:3)

Woman – A woman may not be counted for a minyan (SA OC 55:4).

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