B"H
50 Places where the Halacha is not like Maimonides (Rambam)
Although the Yemenite Jews accepted as a whole the halachic rulings of Rambam, especially where Rambam came to contend with other exponents of Jewish law over difficult halachic issues, still, where they found contradictions between their own halachic traditions and those prescribed by Rambam in his Code of Jewish Law, the practices and customs bequeathed unto them by their forefathers were those that were generally upheld by the community- despite their great love and respect for Rambam. This only goes to show that the Jews of Yemen were not devoid of Torah in themselves, before the light of Rambam shone upon them in Yemen. Rambam's epistle to the Yemenites, as also the following selection of forty so-called "anomalies" found amongst them proves this fact beyond any reasonable doubt. By their persistence in their own particular customs, they showed thereby that halacha and religious observance did not begin for them with Rambam.
1) Rambam wrote (Hilkoth De'oth 5: 19) that a disciple of the Sages must abstain from wearing perfume (fragrant oils &c.) because of the suspicion he would be under for wearing it.
In Yemen, they followed the conclusion found in the Gemara (Berakhoth 43b) in this regard, and they would often put fragrant rose water on their hands. For the prohibition of wearing perfume only applied to places where men were suspect of unnatural connexions.[1]
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2) Rambam wrote: (Hilkoth Tefillah u'virkath kohanim 4: 1-2) "Five things hold back the prayer, although its time had arrived: the purity of one's hands, [etc.]…How [should this be done]? He washes his hands with water up to place of his joints, [2] and afterwards he prays." And in the 6th chapter of Hilkoth Berakhoth, vs. 2, he wrote: "All who wash their hands, whether it were for eating, or for the recital of Qiryath Shema', or for the prayer, blesses at the beginning, "…who hast sanctified us through his commandments and hast commanded us over the washing of hands." He then wrote there (ibid.), vs. 5, "Anyone who needs washing of [his] hands and has immersed his hands … in water which lacked the required quantity of a ritual bath, or either in drawn water … he has done nothing."
In Yemen, they did not wash their hands with a vessel when they came to pray together in the synagogues, nor did they say the blessing, whether it were for the Afternoon Prayer, or for the recital of Qiryath Shema' in the evening. Rather, in every synagogue there was a small basin fixed in its courtyard, made of stone, and which contained a small quantity of water which they always changed. All those who entered to pray the Afternoon and Evening prayers, immersed his fingers in that water up unto their joints, and would then dry them, and then enter to pray. Here, we find that they practiced the teaching described by the author of Halachoth Gedoloth, namely, that it is sufficient to immerse one's hands in a vessel of water.[3] Only with regard to the priests of Aaron's lineage do we find that the Scriptures have excluded them from this leniency of dipping their hands, by saying "from it," and not "in it." [4]
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3) Rambam wrote: (Hilkoth Tefillah u'virkath kohanim 4: 3) "…besides the morning prayer. But in the morning [prayer] he washes his face, hands and feet, and afterwards he prays."
In Yemen, they did not practise the washing of their feet in the morning.[5]
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4) Rambam wrote: (Hilkoth Tefillah u'virkath kohanim 6: 4) "It is forbidden for a man to taste anything or to engage in labour, after the rise of dawn, until he has prayed the Morning Prayer."
In Yemen, they were lenient in this regard, and would permit the drinking of coffee before one had actually prayed. (The coffee was usually made without sugar.)[6]
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5) Rambam wrote: (Hilkoth Tefillah u'virkath kohanim 7: 9) "The people have it as their custom in most of our cities to make these blessings (the morning blessings) one after the other in the synagogue, whether or not they were obligated [to do so by their actual performance], [7] and this is a mistake, and not proper that it be done that way."
In Yemen, they have continued in their ancient custom to say them in the synagogue.[8] But there were those who tried to change the custom according to Maimonides, yet to no avail, even though they had brought support for their opinion from Rabbi Avraham Hanagid,[9] as he wrote in his Responsa, responsum # 83.
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6) Rambam wrote: (Hilkoth Tefillah u'virkath kohanim 9: 5) "And afterwards (i.e. after completing the "Nefillath Apayim"), let the emissary of the congregation [who leads them in prayer] stand up by himself and say the Kaddish a second time, and [let him] say, 'we-hu rahum, [etc.],' 'tehiloh le-dhowidh, etc.', while he stands and they are sitting and reading [the like verses] with him."
In Yemen, the emissary of the congregation who leads them in prayer would only stand up to say the Kaddish when concluding the Nefillath Apayim, but afterwards he would sit down also with them during the ordinary readings of the day, beginning with, "We-hu rahum, etc." The emissary of the congregation would also sit down with the congregation while reciting Qiryath Shema.[10]
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7) Rambam wrote: (Hilkoth Tefillah u'virkath kohanim 11: 4) "How do the people sit in the synagogues? The elders sit with their faces facing the people, and their backs toward the recess in the wall [which contains the scrolls of the Law], and all of the people sit in rows one behind the other, so that all of the people's faces are facing the holy [ark] (i.e., facing the recess in the wall containing the Torah scrolls), and looking toward the elders and toward the pulpit."
In Yemen, the custom was not so. Rather, the men sat around in a circumference along the synagogue walls, and every man's son sat before him. Yet, there is no doubt that this custom is old with them, since it is impossible to say that they learned it from the Arab people whom they live among, for they sit in their houses of worship when all of their faces are in the direction of their venerated place.[11]
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8) Rambam wrote: (Hilkoth Tefillin U'mezuzah Wasefer Torah 1: 4) "What is the remedy for making ink?" (After listing the ingredients for making ink, viz., the soot taken from burnt oils, gum resin, honey and gall – without mentioning blue vitriol, Rambam then concludes by saying:) "When he comes to write…he writes with it, whereby if he erases it, it will [easily] be erased. Now this is the ink with which one is commanded, by the most exemplary standard of halachic rule & order, to write books of the Law, Tefillin and Mezuzoth (door-post scripts). Yet, if he should write the three of them with [only] water of gall, and copper sulphate crystals (blue vitriol), which things cause the ink to take on permanence and is not [easily] erased, they are [still] valid."
In Yemen, the custom was always to add copper sulphate crystals (Arabic: zaj, or blue vitriol)[12] to the ink in order to give it lasting permanence. This, too, was done as a first resort, with no fear that they had acted in defiance of any commandment. This is because Rambam changed his mind about the addition of copper sulphate crystals to the ink as a first resort, writing in his Questions & Responsa, responsum # 136: "For all [scripts] they add copper sulphate crystals (Heb. qalqanthos), except in the section of the suspected adulteress. Now it has already been explained in the Jerusalem Talmud (Sotah 2:4) that the ink mentioned in every place as mere 'ink,' is the ink with which they used to write the books of the Law, in which there was copper sulphate crystals (blue vitriol) in order that it have lasting permanence. Moreover, we have already explained that these copper sulphate crystals will have no effect without the addition of gall."[13]
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9) Rambam wrote (Hilkoth Tefillin U'mezuzah Wasefer Torah 1: 6-7) that there are three kinds of parchment: 1) Whole leather (gawil) – used for writing the books of the Law, or Torah; 2) the leather which, after it has been split down its middle, is closest to the animal's flesh (kalaf) – used for writing Tefillin; 3) the leather which, after it has been split down its middle, is closest to the animal's hair (doksustos) – used for writing Mezuzoth. Rambam writes that each of these must be treated by salting, by flouring and by putting them into an astringent solution of gall, or some similar substance, before they can be used for the books of the Law, Tefillin or Mezuzoth (door-post scripts). So, too, writes Rambam in his Questions & Responsa, responsum # 153.
In Yemen, small kids of the goats, approximately two months old, were used for vellum (kalaf) in making Tefillin.[14] It was not necessary to split the leather, in this case, since it was already very thin. The custom in treating leather hides that were to be used for the books of the Law and for the scroll of Esther was, indeed, to put them into an astringent solution of a gall-like substance extracted from the leaves of acacia (Arabic: qaradh). However, the vellum (kalaf) used in writing the Tefillin was never treated with any gall-like substance. (The reason being that leather, when treated with gall or similar substances, constricts and usually takes on a darker colour. Although this treatment gives the leather its durability[15], it makes writing on such parchment very difficult, as the ink tends to glide on the parchment and is not absorbed so readily into the leather. This makes writing the four portions of scripture in the Tefillin all the more difficult, since the strips of parchment were very small in order that they might be inserted within the phylactery boxes. For this reason, in Yemen as in other places of world Jewry, the leather used in writing the four portions of scripture for the Tefillin went without the treatment of gall, and was subsequently white.)[16]
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10) Rambam wrote (Hilkoth Tefillin U'mezuzah Wasefer Torah 3:9) that when stitching the Tefillin (phylacteries) and scrolls of the Law (Torah) they only make use of the sinew (tendon) that is situate on the heel of either the domesticated or wild animal, which [sinews] are hard [and] white, and are made pliable like unto flax by rubbing them down with stones, or similar things. They are then spun and twisted, etc.
In Yemen, the custom was to make use solely of the sinew (tendon) taken from the animal's loins (flanks) for sewing the Tefillin (phylacteries) and scrolls of the Law (Torah), which same tendon was very long, and did not require softening by working it with a stone. Nor was it necessary to twist the sinew before making use of it. [17]
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11) Rambam wrote: (Hilkoth Tefillin U'mezuzah Wasefer Torah 3: 10-11) "When sewing the Tefillin, they sew them in the form of a square. …and [in] each of the stitches, their thread is to go around [the platform] from two opposite directions. …and if their groove-like compartments are not recognizable, they are invalid. He must, moreover, pass a string or flaxen cord in the midst of each groove-like compartment, upon the leather, in order to distinguish between each compartment. Now the common practice is to pass a sinew, from the sinews used in sewing, in each of the three compartments." (Rambam's words here are taken from the Gemara in Menahoth 34b. Although Rambam understood the Gemara to mean that one is to pass a string, or sinew, between the compartments while stitching the Tefillin, still, the Gemara there has prompted several differing explanations as to its meaning.[18] The earliest explanation we find is that of "Halachoth Ketzuvoth," who explains the matter of the string, or flaxen cord, between the compartments of the Head Phylactery as referring to when the wet and heated leather is being placed over the wooden mold in order to take on its shape, a flaxen cord is to be inserted between each compartment, as also to completely surround all compartments with a cord, so as to ensure the desired shape of the Tefillin when the leather dries.)
In Yemen, one could find amongst G-d's congregations both sets of phylacteries (Tefillin) – those that were made to accommodate the teaching of Rambam (ibid.), and those that were made without passing a string, or flaxen cord, or sinew between each compartment of the Head Phylactery while stitching it. At any rate, the absence of the string, flaxen cord, or sinew between the four compartments does not render one's Tefillin invalid.[19]
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12) Rambam wrote: (Hilkoth Tefillin U'mezuzah Wasefer Torah 6: 7-8) "… a gate house, an exedra[20] and a gallery [built on the upper-storey of a courtyard and which is ascended to by a flight of stairs], as well as a garden and a sheep cote (wood shed), are all exempt from having a door-post script (Mezuzah), since they are not made for [human] habitation. But if houses that were ordinarily required to have a door-post script (Mezuzah) were open unto these places, they would also require a door-post script.
Wherefore, whether they are the gates to a courtyard, or the gates of an alleyway, or the gates belonging to the cities and towns, they all require a door-post script (Mezuzah)…"
In Yemen, the practice was never to install a door-post script (Mezuzah) at the entrance of a gate which opens up into a main street. Some say that this was because of the dirt and filth that lay alongside the roads. (The Yemenite custom follows a teaching found in the writings of Rabbi Yaakov Castro, who wrote: "There are those who exempt the gates that open up into the streets of the town from having a door-post script.") [21]
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13) Rambam wrote (Hilkoth Tefillin U'mezuzah Wasefer Torah 7: 8) that he who writes a scroll of the Law (Torah) should be careful to make the "crownlets" (Heb. "tagin") above certain letters, and which are to be made very thin by the scrivener, and after the similitude of a weapon.
In Yemen, the custom was not to make the "crownlets" (Heb. "tagin") in either the Torah scrolls, Tefillin or Mezuzoth (doorpost scripts), since the accurate tradition regarding this ancient practice had been lost.[22] (Even though Rambam brings down the tradition of making the "crownlets" in the Mezuzah, it was not a practice to do so in Yemen. Besides, as it is well-known, the absence of the "crownlets" does not render the script invalid.)[23]
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14) Rambam wrote: (Hilkoth Berakhoth 1: 12) "[Concerning] bread and wine, if persons intended to eat together, and one of their party happened to make the blessing [over them], all of them have fulfilled their obligation. But the other victuals and beverages [which men make use of in their meals and] which do not require reclining [when eating], even if they had not intended to recline together and one of their party made the blessing [over them] and all of them answered 'Amen,' behold, they are permitted to eat and drink [of that same food without making any other blessings]."
In Yemen, the custom was that whenever a man ate fruit and roasted nuts and grains on any of the festive occasions and ceremonial meals, every man would make the initial blessing for himself out loud, unlike the opinion of Rambam. For they viewed this particular ruling as being a dubious teaching (in accordance with that man who brought it in the Talmud), while Ravad (Rabbi Avraham ben David) held the first opinion brought down in the Talmud as being that which should be followed. [24]
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15) Rambam wrote: (Hilkoth Berakhoth 7: 11) "When they have finished eating, they take away the table, and sweep the place wherein they had eaten, and afterwards they wash their hands."
In Yemen, the custom was not to take away the table whereon they had eaten, which table was usually woven from slit palm-fronds and leaves of rush, and formed into a low, circular basket-like table (Arabic: ghuta.) Large wooden tables were not used in Yemen. Although we do find a similar teaching in Mishnah Berakhoth 8:3, requiring the sweeping of the floor before washing one's hands at the conclusion of a meal, why it is that we do not persist in this teaching today has been explained by Rabbeinu Yonah in his Commentary on Rabbi Yitzhaq al-Fasi's "Halachoth" (Berakhoth 8:3). [25]
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16) Rambam wrote: (Hilkoth Berakhoth 7: 15) "Although the grace said over the meals does not require [a cup of] wine, if he blessed over the wine after the manner prescribed by us, he must [first] scour the cup of blessing from within, and then rinse it from without, and then fill it with wine that has not yet been mingled with water. When he reaches the benediction over the land, he adds thereto a little water, etc."
In Yemen, the custom was always to enquire after a cup of wine whenever ten or more persons had eaten together, over which they said the grace over the meal.[26]
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17) Rambam wrote (Hilkoth Milah 1: 8) that circumcisions should be performed in the early part of the day, saying in the language of the Talmud (Pesahim 4a), "those that are highly motivated press ahead with the commandment."
In Yemen, the practice was to perform the circumcision around noon, or shortly before noon, according with a teaching brought down in Pirke Rebbe Eliezer.[27]
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18) Rambam wrote: (Hilkoth Shabbath 29: 14) "They do not make the benediction known as the Kiddush except only over that wine which is worthy of being used as an oblation upon the altar.[28] Therefore, if it were mixed with honey or leaven, even [a quantity as small] as a drop of mustard within a large flagon, they are not to make the benediction (Kiddush) over it. Thus do we have it as instruction in all the Maghreb. But there are some who permit making the benediction over it, saying that the only reason they spoke of wine which is worthy of being used as an oblation upon the altar was to exclude wine that had a bad smell, or which was left uncovered, or which had been cooked, in order that no man should make the benediction (Kiddush) over any one of these."
In Yemen, the practice was, indeed, not to sweeten the wine used in the Kiddush by adding sugar or honey to the pressed grapes when making wine. Neither would they cook the wine. However, wine that was made by soaking raisins in a container of water for weeks at a time would sometimes be put to the fire in order to impart the flavour of the dried grape to the wine. Maharitz ruled that it was permitted to make the blessing, "Borei Peri Hagofen," over a wine concoction made by soaking raisins in water and putting it to the fire, or what we might call "grape-juice that had been pasteurized." This would mean that he did not rule in accordance with the stringent ruling found in Rambam's "Mishne Torah," who required such wines to be given the blessing, "Shehakol Nehiyeh Bidevaro," and not to be used in the Kiddush.
Likewise, another scholar of that period, Rabbi David Mishreqi, who wrote a commentary known as "Shethilei Zeithim" on the Shulhan Arukh and on RAMA (Rabbi Moshe Iserlisch), made it a principle of his that whenever the custom in Yemen was not in accordance with the RAMA, he would excise the RAMA from his own Commentary. But, here, where the RAMA had written in Shulhan Arukh section # 272, item # 8, that such wines are permitted (even though they had been cooked or sweetened), Rabbi David Mishreqi did not excise this ruling from his own Commentary. This would mean that the people in Yemen generally had it as their practice, too, and would make use of cooked wine when made from raisins in the Kiddush! [29]
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19) Rambam wrote: (Hilkoth Yom Tov 6: 3) "The 'eruvei tavshilin' (which one makes on the eve of a Festival Day in order to permit him to cook on the upcoming Festival Day for the Sabbath, whenever these two days happen to come one after the other), its quantity is not less than an olive's bulk, whether it be for one, or for a thousand. But they do not make this 'eruv' with bread, neither with cakes, or things similar, but [only] with a cooked dish which is served as a savoury, like meat or fish or eggs, and similar things – even if it were only lentils left at the bottom of the pot, or the grease left on the knife with which they cut the roasted meat, he scrapes it off if it contains an olive's bulk."
In Yemen, the custom was to make the 'eruvei tavshilin' with, both, bread and a cooked dish, in accordance with an old exegesis on Exodus 16:23: "They bake [bread on a Festival Day for the Sabbath] by virtue of what they had baked [prior to the Festival Day], and they cook [a hot dish on a Festival Day for the Sabbath] by virtue of what they had cooked [prior to the Festival Day]." את אשר תאפו אפו וכו' Although the Mishnah (Betzah 15b) mentions only a cooked dish when making the 'eruv tavshil, Rabbi Vidal de Telossa already pointed out in his commentary, "Magid Mishneh," that the custom is to do both, in order to dissolve all doubts. [30]
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20) Rambam wrote: (Hilkoth Yom Tov 6: 19) "…although eating and drinking during the feasts is an assertive command, yet no man ought to eat and drink all day long. Rather, all of the people rise to go unto the synagogues and to the Study Halls where they pray and read the Torah in what concerns that day. Afterwards, they return unto their homes and eat. They then go off again to the Study Halls, where they read and recite [their studies] until Noon. After the Noon hour, they pray the Afternoon Prayer and return to their homes, to eat and to drink for the remainder of the day until nightfall." (Rabbi Ya'akov ben Asher, in his Tur, Orah Hayim, section # 529, understood Rambam to mean that we are required to eat a third meal on each Festival Day, just as we do for the Sabbath.)
In Yemen, the custom was not to require the eating of a third meal on a Festival Day. [31]
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21) Rambam wrote (Hilkoth Hametz umatzah 7: 6) that only men and women are obligated to drink the four cups of wine on the night of Passover, but he did not mention the necessity to educate babes, nor to give them also four small cups of wine to drink on that night. Rambam's ruling comes in accordance with a teaching made by Rabbi Yehudah in the Talmud.
In Yemen, they practiced in accordance with that other opinion brought down in the Talmud (the first Tanna), namely, to educate the small children in the observance of the four cups.[32]
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22) Rambam wrote: (Hilkoth Shofar, Sukkah walolav, 1: 1) "…the shofar (horn) with which they make the blast, whether on the New Year's day (Rosh Hashana), or the Jubilee (Yovel), is the curved horn of sheep. Now all [other] horns are invalid, except the horn of a sheep…"
In Yemen, the custom was to make use of other horns, and not only that of the ram (the male sheep). Some would use the horn of the wild goat (Walia ibex) on Rosh Hashana, while others made use of the long, spiraling horn of the kudu antelope because of its deep, reverberating sound. Still, others were apprehensive about the words of Rambam, and would blow only the ram's horn during the required blasts on that day, but at the end of making the required blasts, they would take out the kudu horn and blow it too, in remembrance of their former practice. (The practice to make use of any horn, except that of a cow, is an old teaching brought down in the Mishnah, Rosh Hashana 3:2, viz., that all shofars are valid except that of a cow.)[33]
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23) Rambam wrote (Hilkoth Shofar, Sukkah walolav, 2: 1) that women are exempt from hearing the blasts made by the horn on the Jewish New Year (Rosh Hashana).
In Yemen, the custom was for women to gather themselves in the synagogues on Rosh Hashana to hear the blasts made by the horn.
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24) Rambam wrote: (Hilkoth Ta'anith 5: 6) "When [the month of] Av comes in, joy is diminished. Now the week in which falls the Ninth of Av [fast day], it is forbidden to shave [one's head], or to wash [one's clothes], etc. …Yet, already do [the people of] Israel have it as their practice not to eat meat during this week, neither will they enter into a public bath until the fast is expired. And there are some places where they have it as a custom to cancel the ritual slaughtering [of all animals] from the New Moon until [after] the fast."
In Yemen, the custom was, indeed, to abstain from shaving their heads, and from washing their clothes, on the week in which falls the Ninth of Av fast day. Yet, was there no such custom to abstain from eating meat during that week. Rather, meat was eaten even on the eve of the Ninth of Av fast day, and only at the "se'udah mafseqeth" (the last meal eaten before the commencement of the fast) would they break-off from eating meat, or from drinking wine, in accordance with the Talmud (Ta'anith 30a).[34]
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25) Rambam wrote (Hilkoth Megillah wa-Hanukka 3) that the practice of the ancients in their reading of the Hallel [35] was that no one doubled the verses from where the passage begins "Odhekho,"[36] and those verses which follow. (Heb. אודך וכו') He added, moreover, "This was the first custom, and it is fitting to walk in accordance with it."
In Yemen, the practice was other than that of this opinion, and they doubled the verses from where the passage begins "Odhekho," as well as those verses which follow.[37]
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26) Rambam wrote: (Hilkoth Megillah wa-Hanukka 4: 5) "…Had he forgotten, or acted wantonly, and did not light [the Hanukka candles] with the setting of the sun, he has all the remaining time to light [them] until the feet [of the vendors] have vanished from the market-place. Now how much time is this? Approximately, half an hour or [a little] more. Had this time passed [without his lighting the candles], no longer is he able to light [them]."
In Yemen, the custom was to light the Hanukka candles even though a person might have delayed in lighting them during its appointed hour. However, the lighting of the candles at that time was made without saying the blessing over them. [38]
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27) Rambam wrote: (Hilkoth Ishuth 10: 3-6) "And the benediction [known as] 'Birkath Hathanim' (the blessing of the bridegroom) must be made in the house of the bridegroom before the wedding, which is actually made-up of six [blessings]… But they do not make the blessing of the bridegroom except in the presence of ten distinguished persons, who are [all] free-men (i.e. Jews), the bridegroom, [himself], being counted in this number.
…He that has betrothed a woman and has taken her up under the 'canopy,' but has not yet made the benediction [known as] 'Birkath Hathanim,' lo, she is an undisputed married woman, and he is permitted to come again and make the blessing, even after several days. But let him not marry a menstruant woman until she becomes clean. Had he [gone ahead and] transgressed by marrying [a woman who was unclean by reason of her natural purgation], and made the blessing [of the bridegroom], he does not return and make the blessing [a second time]…" (Maran[39] understood Rambam to mean that although the "Birkath Hathanim" comprising the seven blessings is said on seven different occasions, guests that were invited to the wedding or to any one of the meals following the wedding are only obligated to hear the "Birkath Hathanim" at least once. For example, those persons that have already heard the blessing at the time of the wedding cannot come and say them again during the first meal traditionally eaten in the house of the bridegroom, or on any of the following days.)
In Yemen, the custom was different; viz., to permit one to say the "Birkath Hathanim," not only on the night of the wedding, but also during the first meal that was traditionally held in the house of the bridegroom. Furthermore, it was never required in Yemen that a "new face" be present in the crowd. The custom of Yemen follows that of Rabbeinu Asher, and the author of the Tur. [40]
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28) Rambam wrote: (Hilkoth Ishuth 14: 8) "The woman who withholds coitus from her husband is called a rebellious wife. They enquire of her as to why she rebelled [against her husband]. If she says, 'I find him intolerable, and I am unable to willfully cohabit with him,' they compel him, for the time being, to divorce her, since she is not like unto some captive woman that is lain with by him whom she hates. Yet does she go out without the payment of her ketubbah at all, etc."
In Yemen, the custom was different; viz., not to force a man to divorce his wife by relying solely upon her words, lest perhaps she only said so because she had laid eyes upon some other man. Rabbi Amram Qorah, in his "Sa'arath Teman," (pp. 17-18) wrote: "In a religious ruling where only some of the exponents have differed with Maimonides in a way as to be more stringent [than he], we are not apprehensive about their opinion, (for, lo, they take on strictures after the manner of his opinion where others are of the opinion to be lenient), except in a matter where all the exponents have differed with him in a way as to be more stringent, for example: in the case where a woman makes the claim [that her husband is] intolerable (Maim. Hilkoth Ishuth 14:8). In this case, they are to be apprehensive about their opinion, and they pass judgment just as they would."
If a woman claimed that she found her husband intolerable, and substantiated her claim by bringing evidence to that effect, the Court could actually rule on her behalf, forcing her husband to divorce his wife. Otherwise, the husband may either divorce his rebellious wife at will, or withhold from her a bill of divorce. (cf. Shulhan Arukh, Even Hae'zer, 77:2).[41]
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29) Rambam wrote: (Hilkoth Ishuth 16: 4) "Likewise have they enacted that when she (a widow) comes to exact the pledge made by her husband in the ketubbah, after his death, she is not permitted to make the exaction until she swears by oath, by taking up an object, that she has not taken unto herself aught [of her husband's property], neither has she sold her ketubbah to him, nor relinquished her claim to it, etc."
In Yemen, the custom was different. According to a responsum written by the Court at San'a in 1911 C.E. to Rabbi Avraham Kook, Chief Rabbi of Jaffa, they acknowledged that, "for the most part, they (the Court) will strive to make a compromise between them (i.e., the widow and the heirs to their father's property), while forgoing the necessity of bringing her under an oath. In most cases, her sons are the heirs, and are quick to exonerate their mother. But those heirs who stand on the letter of the law, they bring her under oath." [42]
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30) Rambam wrote (Hilkoth Ishuth 21:8) that a woman, during her natural purgation, is forbidden to eat with her husband from the same plate, and to make-up his bed before him, or to mingle a cup of wine with the intention of passing it from her hand into his hand in the usual manner. However, if she laid the cup upon the floor, or upon a vessel, etc., even though it had been mingled before him, it is permitted for him to take it up.
In Yemen, the custom was not only to forbid these things, but also to forbid the passing of all objects from hand to hand, even though this prohibition was not mentioned by Maimonides. A man, whenever he wished to pass an object to his menstruant wife, would lay the object upon a table, or the floor, etc., while she would do the same.
* * *
31) Rambam wrote: (Hilkoth Ma'achaloth Asuroth 3: 15-16) "As for butter belonging to the gentiles, some of the Geonim have permitted it, since they did not decree against butter, while milk taken from an unclean [animal] will not stand (coagulate).[43] Still, some of the Geonim have prohibited it, because of the thin film of milk that remains within it [after it coagulates], seeing that the agent [used in curdling the milk and which remains] in the butter is not mixed well-enough with the butter in order to cancel its small quantity. Now we suspect all of their milk lest perhaps they have mixed with it the milk of an unclean animal.
It would seem to me that if he had taken butter from a gentile, if he cooks it long enough until the thin film of residual milk has evaporated, lo, such [butter] is permitted."
In Yemen, the custom was to eat butter produced by the gentiles all throughout the year, except during Passover. The cooking of that butter taken from the gentiles was not even a requirement. Maharitz writes the following in his Questions & Responsa "Pe'ulath Sadiq," vol. II, responsum # 180: "Now what they have written [in the book, Sama Dehayei], 'Likewise, the Geonim, of blessed memories, have given legal instruction that butter, and honey and oil, in their natural state, can be taken from the gentiles all throughout the year, so too are they permitted at the Passover, etc.,' the sense here is that just like during the other days of the year we do not suspect the pollution of those vessels belonging to the gentiles, since ordinary vessels belonging to the gentiles do not usually suffer from any uncleanness contracted on the very day of its use, so too would the case be at Passover. For the rule that stands with us is this, viz., that that which imparts the mere vestiges of a corrupted taste is permitted. [44] And, lo! Even though Maimonides, in the third chapter of Hilkoth Ma'achaloth Asuroth, has indeed forbidden butter belonging to the gentiles on the other days of the year, due to the pollution of those vessels in which it be contained, and the world is not careful concerning this matter except for a few of the aesthetes who separate themselves, that is, by reason of the fact that their own sustenance depends upon it, and they have no recourse to butter produced by Jews on account of poverty, and only one man in a thousand is able to raise for himself a cow in his stall, therefore the early expositors of our laws saw fit from the start to rely upon those who contended, and who reasoned that ordinary vessels belonging to the gentiles do not usually suffer from any uncleanness contracted on the very day of its use, and they went, from the very start, to make this a rule of practice on account of their lives depending upon it, not to mention that our Rabbi, Maimonides, was a sole objector in this, his opinion, while all the great Rabbis refuted it…" [45]
* * *
32) Rambam wrote (Hilkoth Ma'achaloth Asuroth 6: 7) that the common practice is not to cook the brain taken from the cranium [of a ritually slaughtered animal], neither to roast it [in a frying pan] without first putting it directly to the flame of a fire.
In Yemen, the custom was different; viz., to permit its eating without having to put it directly to the flame of a fire. Only, precautions were taken to first remove entirely the membrane that enveloped the brain, and then to salt it, before cooking it.[46]
* * *
33) Rambam wrote (Hilkoth Ma'achaloth Asuroth 6: 10) that the meat of ritually slaughtered animals must be cut, rinsed, salted, and again rinsed, before it can be thrown into a pot of boiling water (a process known as halita) and then cooked for eating. Rambam makes no mention of the necessity of soaking the meat in a tub of water for approximately one half of an hour before salting it.
In Yemen, the custom of most of the people, whether Baladi or Shami, was to soak all meat in a tub of water for approximately one half hour prior to salting it.[47]
* * *
34) Rambam wrote: (Hilkoth Ma'achaloth Asuroth 15: 32) "…If the hind leg (thigh) of an animal was inadvertently roasted with its long sinew (i.e. displaced tendon, or what is called "gid hanasheh"), the meat can still be eaten by first peeling away all flesh that surrounds the tendon, until he reaches the tendon, in which case, the tendon is discarded." (Rambam's ruling here is identical to a similar ruling made by Rabbi Yitzhaq al-Fasi in his "Halachoth," Tractate Hullin, chapter "Kol Habasar.")
In Yemen, the custom was to permit its eating only by taking the additional precaution, when peeling away the meat, of leaving the thickness of a finger's breadth (ca. 2.25 cm.) surrounding the tendon and which was not to be eaten. In other words, it was never permitted, in such cases, to eat as far as the tendon itself. (So, too, Rabbi Yoseph Karo, in his Commentary "Keseph Mishne," ibid., writes that the authors of the Tosefoth, and Rabbeinu Asher, as well as Rabbi Shelomo ben Avraham Aderet and Rabbeinu Nissim, all had it as their practice not to permit its eating by simply peeling away the meat and eating until he reaches the sinew. Rather, the thickness of a finger's breadth surrounding the tendon is the verge, or limits, of what can be eaten.)[48]
* * *
35) Rambam wrote (Hilkoth Ma'achaloth Asuroth 17: 9-12) that the bread of gentiles baked within their homes is forbidden, an enactment made by the early Sages in order that Israel might be kept at a distance from non-Jews, and, especially, from consummating marriages with them.
In Yemen, the practice was to eat that bread baked in the home of gentiles. It did not carry the censure of the Rabbis in Yemen, perhaps because their sustenance, especially those of the poor villagers, often depended upon it. In doing so, they also relied upon a teaching in the Talmud (Baba Metzia 60b) that says: "They cannot make a public enactment unless the majority of the public is able to bear it." Moreover, in the Jerusalem Talmud (Pesahim 2:2), we find a teaching that says leaven belonging to gentiles, which had been in existence during the Passover and which was left over after the Passover, may be eaten by Israel after the Passover when, in those places, it was customary for Israel to eat bread that was baked by gentiles. Where it was not customary for Israel to eat bread baked by gentiles, Israel could not eat of their leaven which remained after the Passover. Maimonides, in his commentary on Mishnah Pesahim 2:2, says that, by this, the matter of eating bread baked by gentiles depends upon local custom. Maimonides writes further (Hil. Ma'achaloth Asuroth 17:12) that, in Spain, while it was not a custom to eat gentile bread which was baked in their homes, it was, however, a custom to eat gentile bread taken from the public bakery. It should be noted here that the Jerusalem Talmud does not make the same distinction between gentile bread baked within their homes and the bread which is to be had at the public bakery. Perhaps this, too, explains the leniency practised in Yemen. Where there was a custom to eat it, the custom was upheld.[49]
* * *
36) Rambam wrote: (Hilkoth Shechita 1: 23) "The ritual slaughterer must check the knife [for blemishes] on its sharp cutting edge, and on the two sides which run lengthwise alongside the cutting edge of the blade. How does he perform the check upon it? He passes it in an outward motion and then brings it back over the flesh of his finger, and then he passes it in an outward motion and then brings it back over his fingernail, on its three angles, which are the cutting edge and its two sides, etc."
In Yemen, there was no custom to check the blade of the knife by passing it over the flesh of one's finger, but rather, only over the fingernail. Neither do any of the ritual slaughterers in any of the other countries practise this stringency to check the blade of the knife for blemishes by passing it over one's flesh, but rather only over one's fingernail. The custom in this regard is to rely upon a teaching in "Peri To'ar" which says that, today, our flesh has lost its sense of touch.[50]
* * *
37) Rambam wrote: (Hilkoth Shechita 1: 24) "And he must, likewise, check (the knife) after the slaughter."
In Yemen, they had no custom to check the knife after the slaughter, except in the case where he wanted to slaughter another animal.[51]
* * *
38) Rambam wrote: (Hilkoth Shechita 11: 7-8) "The ordinary custom in Israel [is thus] . . . But if a ligament is found adhering to the lobe of the lung, in whatever place it extends itself, even if it were the size of a breadth of hair, they make it (the butchered animal) forbidden."
In Yemen, the practice was to dislodge every adhesion which they happened to find connecting itself to the lungs, and to check it[52] in lukewarm water. If it did not cause bubbles, it was permitted, just as Rambam has written there in vs. 6. Now Rabbi Abraham, his son, was already asked concerning this [matter], and made the reply: "What they have practiced in Yemen to permit [an adhesion which was found] close to the wall [of the lung] and which has outgrowths, by checking it in lukewarm water, they have practiced according to the law, and in keeping with what is prescribed, at close examination of the matter. Nevertheless, they have abdicated[53] from the custom of the diaspora Jews." [54]
* * *
39) Rambam wrote: (Hilkoth Shechita 11: 11) "Now we have never inflated a lung in Spain, nor in the Maghreb, except in the case where an uncertainty developed wherein there was reason to doubt [its fitness]."
In Yemen, they inflated every lung, just as he mentioned there (Mishne Torah, ibid., 11: 15), "there are places, [etc.]" [55]
* * *
40) Rambam wrote: (Hilkoth Shechita 14: 1) "It is an assertive command to cover up the blood of a ritually-slaughtered animal that is clean, or a fowl that is clean, etc. Therefore, he must bless before he covers up the blood, [saying], '[Blessed art thou, O Lo-rd, king of the universe], who hast sanctified us through thy commandments, and hast commanded us concerning the covering up of blood.' "
In Yemen, the custom was to make the blessing as stated above, yet with the addition of, "with earth." That is, "…and hast commanded us concerning the covering up of blood with earth." (Heb. Be'afar). Rambam omits this word. [56]
* * *
41) Rambam wrote: (Hilkoth Tamidin u'musafin 7: 7) "The entire night is valid for bringing the Omer, but if he had brought it during the day, it is [still] valid." That is to say, the Omer was traditionally reaped during the night as a first rule of practice, but it was never seen as an indispensable rule in which it could never be brought during the day (cf. Menahoth 71a). Therefore, it stands to reason that since the day is valid for reaping the Omer, the day would likewise be valid for saying a blessing during the counting of the Omer, and, particularly, since the day is part and parcel of the night which preceded it. Furthermore, since that edition of Halachoth Gedoloth found in the Ambrose Library of Milan, Italy, permits saying the blessing during the day when he had forgotten to count the Omer at night, and this version of Halachoth Gedoloth (or one similar to it) happens to be the version recognised by Maharitz ("Pe'ulath Sadiq" vol. III, responsum # 10), as it is also recognised by Rabbeinu Nissim (Haran) in his commentary at the end of the second chapter of Megillah (Megillah 20b), we can add this opinion as an extension to that of Maimonides and say that it is permitted to bless over the counting of the Omer during the day when he had forgotten to count at night.
This, however, would be the case only if someone had prayed alone in the evening, or without a quorum of ten adult males, where he was required to make the blessing and counting for himself. However, on ordinary occasions, the Yemenite practice is that the Shaliach Tzibbur (emissary of the congregation) makes the blessing over the counting of the Omer for the entire congregation, and no one repeats the blessing, but will only count for himself.
In Yemen, the custom slowly began to change after the introduction of the Shulhan Arukh. Maharitz in his Questions & Responsa "Pe'ulath Sadiq," vol. III, responsum # 10, ruled in this regard like the Shulhan Arukh (Orah Hayim 489:7), who wrote that if one forgot to count the Omer at night, he is to count the Omer during the upcoming day without a blessing. Maharitz concludes there that from the standpoint of the law, however, it is permitted for the Yemenites to bless over the counting of the Omer during the day when he had forgotten to count at night, seeing that their country is under the jurisdiction of Maimonides who permits making the blessing. He reasons, moreover, that in Yemen there was never any set custom in this regard, since the Shaliach Tzibbur (emissary of the congregation) is the only one who says the blessing at night for the entire congregation, and the very few who did not hear the blessing on that night, nor said it for themselves on that night, there were some who would say the blessing in the morning while others would abstain from saying it in the morning. Moreover, the rule which says, "Dubious blessings are to be treated lightly" – meaning, one is to abstain from blessing altogether- only applies to when the Rabbis are in dispute about whether or not the deed requires a blessing. But where the dispute is over the manner in which the deed is to be performed, a man can follow the opinion of his Rabbi, even though the matter is in dispute, and he may make the blessing over the deed. Notwithstanding, Maharitz goes on to say that since there is a general rule which says blessings do not subtract from the Mitzvah itself, and seeing that great personages such as Rabbeinu Asher and Mordechai disallowed saying the blessing, and Maran agreeed with them, we do not have the power to object here, in this case.[57]
* * *
42) Rambam wrote: (Hilkoth Mechirah 5: 11) "There are many things that do not require [the act of] purchasing (Heb. "kinyan"), nor is there any rationale in those things. For example, with him that delivers a declaration [of protest before two witnesses.]"
In Yemen, the custom is that he who divorces his wife accepts, by the principle of this act of purchasing (Heb. "kinyan"), that he disavows all declarations which may have been made in protest before two witnesses. The act of purchasing was done in the following manner: Before exacting from the husband a verbal declaration known as, "the cancellation of any statement" (Bitul Muda'a), the woman's husband was required to hold on to the end of a Tallith by its tassels, and one of the judges would say to him, "Purchase by this decent piece of clothing the right that you will have to cancel all statements which may have been made by you, and any statement you may have made against the statement [that you were about to make here, this day], even unto the very last statement, in the event that you made such statements against this divorce." The husband then simply answered "Amen," in agreement, since it is not necessary for him to utter with his own mouth the words, "Bitul Muda'a," the cancellation of all statements.[58]
* * *
43) Rambam wrote (Hilkoth Avel 4: 1) that after a person dies, they prepare his body for burial, Viz., first, they close his eyelids, and if his mouth were to fall open, they shut it by tying his jaws. They also plug the orifices (e.g. the nostrils, ears, etc.).
In Yemen, there was no such custom to plug the orifices of the dead with cotton, or with anything else.[59] Rather, after the body had been laid upon a mat on the floor, they would wash the body with lukewarm water, douse it with perfume, and shave his head with a razor (leaving only his side-locks and beard). Afterwards, they would cover his body with a white sheet, and then take him into a room where they would dress the dead in his Sabbath clothes and in his hat. Afterwards, they would wrap him up entirely in a white burial shroud, which shroud is bound to the clothed corpse by a strip of cloth that is wrapped around the body from head to foot. This strip of cloth has the width of about 4.5 cm. They leave only his head unwrapped until his immediate family members can pay their last respects by viewing his face before burial, after which, the face is also covered.
44) Rambam wrote (Hilkoth Avel 4: 3) that the pallbearers that carry the bier in a funeral procession are not to walk with their feet shod in sandals, lest one of their straps should break, and they be forced to delay the procession on that account.
In Yemen, the custom was to wear shoes, or sandals, while carrying the bier, since those that carried the bier took turns with others, ever so often, with whosoever followed along with them, in order to relieve them if one of the pallbearers should grow faint or encountered some other mishap along the way. [60]
* * *
45) Rambam wrote (Hilkoth Avel 4: 4) that the corpse is to be buried in a wooden coffin.
In Yemen, there was no such custom to bury their dead in wooden coffins.[61] Rather, the corpse, after being wrapped in burial shrouds, was laid upon a bier, and carried in this way to the gravesite, where it was then laid in its grave, face-up, without the bier, and with the feet of the corpse facing towards Jerusalem.
46) Rambam wrote: (Hilkoth Avel 12: 4-5) "They do not make less than seven stations (Ma'amadoth) in a funeral procession for the dead… Just as they make ma'amad u'moshad * for the men, so, too, do they make them for the women, etc."
In Yemen, the custom was not to make the "ma'amad u'moshav" * for male children younger than the age of thirteen, nor for women.[62]
[* The custom practised during funeral processions is to halt at, at least, seven stations before the actual burial of the dead, beginning from the entrance of the house from whence the bier is taken, to the graveyard itself.[63] This has come to be known as "Ma'amad u'Moshav," (lit. "Standing and Sitting"), or "seven standings and sittings," and is mentioned in Tosefta Pesahim 2: 14-15, but in other editions, chapter 3,[64] where we learn: "In the place where the custom is to make the Ma'amad u'Moshav, they do so. Where it is not a custom to do so, they do not do it. There is no Ma'amad u'Moshav less than seven times." During the first station, the bier is let down by the pallbearers upon the ground, a little beyond the gate of the city. While standing around the bier, the pallbearers and those accompanying will recite "Hatzur Tamim Pe'ulo," etc. "Ana Bakoach," etc., said in a doleful dirge-like melody, and which verses are followed by one of the party reading certain Midrashic literature that speaks about death, &c. in order to eulogise the deceased. The bier is again taken up by the pallbearers (these being exchanged by others when they grow tired), and, while the procession proceeds on a little space, they will recite a liturgical poem, its lines arranged in alphabetical order, viz., "Ahuv Yerahamekha," etc., "Borukh Yerahamekha," etc., "Jibbor Yerahamekha," etc. This poem is repeated as often as needed until reaching the second station, where the process is repeated. When the bier is once again taken up to go towards the third station, as also the 4th, 5th, 6th and 7th stations, they continue with the abovementioned alphabetically arranged liturgical poem where they had left off. So, too, while letting down the bier at the various stations, one person eulogises the deceased, and concludes each eulogy with praise for the deceased, saying: "Ashrau, wa'ashrei helko" (אשריו ואשרי חלקו). Thus have we found this practice described in all of our books.]
* * *
47) Rambam wrote (Hilkoth Avel 13: 2-3) that, when comforting the mourners following the burial of their dead, the mourners stand on the left-hand side of the comforters, while the comforters form themselves in rows of no less than ten people to each row when conveying their condolences.
In Yemen, the practice was not to follow the order as prescribed, here, by Rambam, but rather, the mourners would stand at a short distance outside of the graveyard, while the comforters would pass by one after another, in single file, but not necessarily in rows of ten. The comforters were not particular whether the mourners were actually standing on the left-hand side of the comforters, or were standing on their right-hand side. Neither did the Yemenites say the "Mourners' Benediction" as prescribed by Maimonides. (However, when sitting within their homes, where it was possible for the mourners to sit on the left-hand side of those that enter inside to convey their condolences, they would do so. Even so, it was not seen as being absolutely essential.).[65]
* * *
48) Rambam wrote: (Hilkoth Avel 13: 8) "They do not drink in the house of mourning more than ten cups [of wine] for each individual; three [cups are to be drunk] before the supper, while three in the midst of the supper and four [cups are drunk] after the supper. He is not permitted to add more than these, lest he should become intoxicated."
In Yemen, the custom was not to drink wine in the house of mourning, except only during the supper itself, or immediately prior to serving supper when the guests would eat fruit, and be given drinks of, either, wine or arrack, or a brew made from hulled coffee beans. After the supper, they did not drink wine at all. (This practice is in accordance with a teaching in Ketuboth 8b where, formerly, the custom was to drink ten cups of wine in the house of mourning, which later changed to fourteen cups of wine, until on that account, they reached a state of drunkenness. It was then decided to "bring back the former enactment." RASHI explains "the former enactment" as meaning, "to drink only ten cups of wine." Although Maimonides ruled, in this case, like RASHI, viz., to drink up to ten cups of wine, Rabbi Yoseph Qafih explained that it was never actually the custom to do so. Perhaps the Yemenite custom follows the explanation given there by Ramban, who said "the former enactment" refers to refraining from drinking wine except in the midst of one's supper. Even the grace that was said after the meal, they would forfeit the cup of wine which was ordinarily taken up to say the benediction over it.) [66]
* * *
49) Rambam wrote: (Seder Ha-Tefillah) "The Shaliach Tzibbur (emissary of the congregation) says the Kaddish always before each prayer, and after each prayer."
In Yemen, the custom was not to say the Kaddish before commencing the Evening Prayer, but rather, the Shaliach Tzibbur would simply begin by saying, "Wehu Rahum Yichaper 'Awon, etc." (Perhaps the omission of the Kaddish was due to the fact that, in Yemen, they would always make the Afternoon Prayer (Minhah) and the Evening Prayer ('Arbith) one after the other, with no intermission in between.[67] At any rate, the custom remains even to this day, and even when the two prayers are not said one after the other. Likewise, no Kaddish is said at the conclusion of "Aleinu leshabeah."
* * *
50) Rambam wrote (Seder Ha-Tefillah) that on the Ninth of Av fast day, during the prayer known as Tefillath Shemonah 'Esreh (the Eighteen Benedictions), they say during the 14th Benediction, "Have mercy, O Lo-rd our G-d, upon us, and upon Israel thy people, and upon Jerusalem thy city, etc. …And take pity upon her desolate places and comfort her, for thou, O Lo-rd, hast established her by fire, and by fire thou shalt build her in the future, etc."
In Yemen, the custom was to make use of only their own Prayer Books, viz., the Tiklal of the Baladi-rite, which although it is very similar in almost all respects to the prayer-rite copied down by Rambam in his "Mishne Torah," it still differs in many other respects. The 14th Benediction said on the Ninth of Av fast day, for example, differed from that version brought down by Rambam. Instead of saying, "for thou, O Lo-rd, hast established her by fire, etc." they would say, "for thou, O Lo-rd, hast set her on fire, and by fire thou shalt build her in the future."
Examples of other differences: The Yemenite Baladi-rite prayer ritual requires that when a man prays alone, or in company of less than a quorum of ten adult males, he must say in lieu of the Kaddish: "Barich Shemeh de-Quddsha Barich Hu, Le-'ela, Le-'ela, Mikol Birchatha, Shiratha, Wathushbehatha Wanehamatha Di-Amrinan be'olema, etc.," [68] just as it is prescribed by the ancients of our religion to be said whenever a "yachid" prays alone. Rambam makes no mention of this. Likewise, there are elements of the Baladi-rite Prayer Book which have come down unto us from the days of Rabbeinu Sa'adia Gaon, such as the opening words of the Hagaddah said on the night of Passover, "Terumah Hivdilanu Mikol 'Am, etc." which words are omitted in the Passover Hagaddah copied down by Rambam. Despite the many latter additions which were added to the old Baladi-rite Prayer Book, such as the liturgical poems of Rabbi Yehudah Halevi of Spain (Hamehulal, Sha'ar Horahamim, etc.), and excerpts taken from the Zohar * and from the printed Prayer Books that reached them (Avinu Malkeinu, Avinu Attah), etc., the Yemenites have still persisted in their old custom to make use of the same language passed on to them by the Men of the Great Assembly.
[* Conversely, the Yemenites have broken away from their old prayer ritual with regard to the Qaddusha (the third benediction) formerly said during the Musaf-Prayer on the Sabbath and Festival Days, and which former practice followed more closely that of Rambam. For example, the old custom was not to say, "Kether Yitenu Lekha A-dhonai E-loheinu Malakhim Hamonei Ma'lah, etc." but rather, the emissary of the congregation would say only "Naqdishakh Wana'arisakh, etc.," just as he says on all other days, and as prescribed by Rambam. The new custom was influenced by the Zohar, as explained by Maharitz in his Commentary "Etz Hayim."] [69]
* * *
FOOTNOTES:
[1] See: Maharitz's Questions & Responsa "Pe'ulath Sadiq," vol. III, responsum # 266.
[2] i.e., the wrist.
[3] So writes Rabbi Yoseph Qafih in an ancient Yemenite Commentary, etc.
[4] Regarding the washing made by the priests (Cohenim) before entering the Holy Place (see: Exodus 40:31) which, by way of an exegesis on ורחצו ממנו משה וכו', required pouring of the water from the laver onto the hands, and not immersing them inside the laver.
[5] So writes Rabbi Yoseph Qafih in an ancient Yemenite Commentary, etc.
[6] See: Rabbi Yoseph Qafih's commentary on Maimonides' "Mishne Torah," Hilkoth Tefillah 6:4, footnote #9.
[7] The Talmud (Berakhoth) requires making a blessing at the performance of certain mundane tasks, such as when one puts on his shoes, or when one stands up in the morning after his sleep, etc. According to Maimonides, only when one actually performs a certain task is he obligated to make the designated blessing, then and there. In Yemen, they delayed in saying the required blessings until they had first gone into the synagogue to pray.
[8] So too writes Maran in his Shulhan Arukh as being the custom of the people.
[9] He was the fourth generation after Moses b. Maimon.
[10] So writes Rabbi Yoseph Qafih in his "Halichoth Teman" (first edition), pg. 67, and repeats the same in his introduction to an ancient Yemenite Commentary on Rabbi Yitzhaq al-Fasi's "Tractate Hullin."
[11] So writes Rabbi Yoseph Qafih in an ancient Yemenite Commentary on Rabbi Yitzhaq al-Fasi's "Tractate Hullin.." The venerated place referred to here is Mecca.
[12] In some places they added the litharge of alum (Arabic: al-hura taken from shab) instead of copper sulphate crystals, since it has the same property as blue vitriol. When mixed with water, it produces a black dye.
[13] See: Rabbi Amram Qorah's "Sa'arath Teman," page 99.
[14] So was I told by Mori Hayim Gavra.
[15] Leather not treated with gall (tannic acid), and to which a hot iron was put, will shrink. Not so leather that has been treated with gall.
[16] So did I hear from Mori Shelomo b. Suleiman Qareh of Jerusalem.
[17] So writes Rabbi Yoseph Qafih in his Commentary on Rambam's "Mishne Torah" (ibid.), footnote # 20.
[18] The Gemara (Menahoth 34b) raises a hypothetical situation, saying that if someone had written the scriptural portions used in the Head Phylactery on one piece of leather parchment it is still valid, although as a first resort, he is to write them on four separate pieces of leather parchment. The statement brings about a dispute between Rabbi Yehudah Hanassi and the Sages. Rabbi Yehudah Hanassi requires in such cases where he had written them on one piece of leather parchment to leave a space between each scriptural portion. The Sages say that this is not necessary. The Gemara then says concerning Rabbi Yehudah Hanassi and the Sages: "Yet are they in agreement that he is to put a string, or flaxen cord, between each of them," i.e. the compartments of the Head Phylactery (RASHI), "and if their groove-like compartments are not recognizable, they are invalid." The Tosefoth (ibid.) explain rather that where the Gemara writes, "Yet are they in agreement that he is to put a string, or flaxen cord, between each of them," this refers specifically to when the scriptural portions had been written on one piece of leather parchment, but not when they had been written on four separate pieces of leather parchment, etc. (Meaning, the string is to serve as a divider between each several scriptural portion.) Rabbeinu Asher also follows this train of thought. Rabbi Betzalel Ashkenazi, in his "Shitah Mequbetzeth," has altogether a different approach in explaining our Gemara.
[19] So writes Rabbi Hayim Kessar in his commentary "Shem Tov" on Rambam's "Mishne Torah." The Baladi-rite Prayer Book of Rabbi Yehiya Bashiri, as also of Maharitz, requires passing the sinew between the compartments of the Head Phylactery. Rabbi David Mishreqi, however, in his commentary on the Shulhan Arukh known as "Shethilei Zeithim," ibid., small item # 106, wrote: "In these places, it is not their custom to do so, since they hold to the opinion of the poskim that say it is not necessary [to pass the sinew between the compartments]. And it would seem to be the opinion of Rabbeinu (Rambam) and the Tur that the absence of which does not render one's Tefillin invalid."
Rabbi Ratzon Arussi also heard an oral tradition regarding this matter from Rabbi Hayim b. Rabbi Azri Giat, an expert in making Tefillin, who, in turn, heard from his father that the phylacteries worn by their fathers in Yemen since earliest times were made without this sinew passing between the four compartments ("frontlets"). Still, the Jareshi family had successfully stitched their Tefillin with a single thread of ligament, and passed the thread between each compartment, in accordance with the words of Maran. Rabbi Hayim Kessar had also seen an old Head Phylactery from Yemen with a thread running between the four compartments.
[20] That is, a recess in the wall of a courtyard or other open area, as in a palaestra, used for lectures or meetings.
[21] So writes Rabbi Shalom Yitzhaq Halevi in his book, "Divrei Shalom Hachamim," page 294.
[22] So did I hear regarding the Torah scrolls from Rabbi Hayim Benayahu. See also what Rabbi Yoseph Qafih wrote about this in his Commentary on Rambam's "Mishne Torah," ibid., footnote # 23.
[23] Mori Shelomo b. Suleiman Qareh gave another explanation for their absence, saying that if you make them but are not accurate in copying them down, you do more damage than good.
[24] So writes Rabbi Yoseph Qafih in an ancient Yemenite Commentary on Rabbi Yitzhaq al-Fasi's "Tractate Hullin.."
[25] Rabbeinu Yonah, in the name of Rabbi Yitzhaq the Elder, explains in his commentary on the Halachoth of Rabbi Yitzhaq al-Fasi (Berakhoth 8:3) that where the Mishnah brings down a teaching of the school Shammai over the necessity of sweeping the floor where one had just eaten before he washes his hands at the conclusion of a meal, etc. it refers there to where they once had it as their custom to take away the table at the end of their meals. Now since the washing of hands naturally followed the conclusion of one's meal, and it was done where the table once stood, there was a real concern that water would either fall or drip upon the bread crumbs that were lying on the floor, had they not first swept the floor, causing disrespect to the food. (Especially if there was a waiter who was but a mere rustic (Am Ha'aretz) and who would not think to take up an olive's bulk of bread crumbs from the floor before offering each man water to wash his hands.) But, said Rabbi Yitzhaq the Elder, this custom is no longer observed by us today since it is neither our custom to take away the table, nor to wash our hands over the spot where we had eaten, but rather, we wash our hands away from the table. So far his words. In Yemen, there was a similar custom not to remove the table at the conclusion of a meal. The people were also very scrupulous not to wash their hands directly over the table where they had eaten bread. See: Yehiel Hibshoush's "Shenei Hame'oroth," page 62 (s.v. "Anahnu Yehudim miyamei Moshe ben Amram"). See also Rabbi Hayim Kessar's Questions & Responsa, "Hahayim wehashalom," Orah Hayim, responsum # 77.
[26] So writes Maharitz in his Tiklal "Etz Hayim," vol. I, page 167b, in the first printed edition in 1894 C.E.
[27] So was I told by Rabbi Yoseph Qafih, of blessed memory.
[28] In accordance with a teaching in Mishnah Menahoth 8:6 which says: "They may not bring wine that had been sweetened or smoked or cooked, and if they did so it is invalid." (See also Baba Bathra 97a).
[29] Rabbi Yehiya Bashiri writes in his "Tiklal Qadmonim" that cooked wine carries with it the blessing of "Shehakol," and not "Borei Feri Hagofen." Even so, he was referring there to when cooked wine would be drunk on other occasions, but not for the Kiddush on the Sabbath or Festival Days.
[30] See: Maharitz's Tiklal "Etz Hayim," vol. II, page 1, in the first printed edition of 1894 C.E.
[31] See: Maharitz's Questions & Responsa "Pe'ulath Sadiq," vol. II, responsum # 225, who brings proof from the Talmud (Sukkoth) that only two meals are required to be eaten on a Festival Day (besides a Festival Day that fell on a Sabbath). He quotes also from Tosefoth Yom Tov, who brings additional proof from the Jerusalem Talmud (Ma'aseroth, ch. 5), that only two meals are required to be eaten on a Festival Day.
[32] So writes Rabbi Yoseph Qafih in an ancient Yemenite Commentary, etc.
[33] See: Rabbi Amram Qorah's "Sa'arath Teman," page 99.
[34] The Yemenite custom is well known, and has been documented by many persons, including Rabbi Amram Qorah in his "Sa'arath Teman," pg. 100. So, too, Harav Hamagid, while commenting on Maimonides (Hil. Ta'anith 5:6), writes: "This custom has not spread in these countries, regarding the abstention from eating meat [during the week of the Ninth of Av], for they do not abstain [from doing so] except on the eve of the fast. However, no one will enter a public bath house."
[35] Psalms 113 – 118.
[36] Psalm 118: 21 – ff.
[37] So writes Rabbi Yoseph Qafih in an ancient Yemenite Commentary, etc.
[38] See the words of R. Yeshua Shababo Yedia Zayin (member of the Rabbinical Court of Cairo) and author of the work, "Perah Shooshon," copied down in Maharitz's Questions & Responsa "Pe'ulath Sadiq," vol. I, responsum # 158 (159).
[39] See: Maran's book, "Bedeq Habayt," Even haezer, section # 62, where he writes: "From the words of Rambam it seems that even during the first supper on the first day [of their wedding], we do not make the seven benedictions unless there were present different diners [at the table] who did not hear the Wedding Benediction at the time of the wedding. But the Ramach (Rabbi Moshe Cohen) has written concerning this that according to a lesson derived from the Gemara, the blessing made for bridegrooms was established whenever there was to be a supper, and seeing that it is so, it is not right that the blessing said over the meal takes the place of the Wedding Benediction. Now our custom is to make the blessing for the bridegrooms during the supper, even if the entire congregation were present at the hour of the wedding, and had already heard the blessing made for the bridegrooms."
[40] See: Maharitz's Tiklal "Etz Hayim," vol. I, page 170b in the first printed edition of 1894 C.E., or vol. I, page 273a-b in the second printed edition of 1971 C.E.. (Compare Maran's book, "Bedeq habayth," Eben ha'ezer, section # 62) See also Maharitz's Questions & Responsa "Pe'ulath Sadiq," vol. III, responsum # 252.
[41] See also the Questions and Responsa, "Ma'asei Ish," by Rabbi Ya'akov Shaul Elyashar (Chief Rabbi of Israel), where in one of the exchanges of correspondence written around 1890 C.E. is found this statement by Rabbi Sa'id ben Yoseph al-Qafih of Yemen: "…In our place, where it was never a practice to force [a man to divorce his wife] in cases where there was a rebellious wife, it is plain [therefore] that they do not compel [a man] to give [his wife] a bill of divorce after the time [had expired], and this is what Maran, of blessed memory, has intimated, [when he referred] to the responsum of Rabbeinu Asher, of the general item # 43, in the Order of Even Ha'ezer. Alas! Over those who are lost [and no longer found with us]!"
[42] This responsum is written in the book, "Masa Le'Teman," by Shemuel Yavnieli, page 198, item # 12. Compare Maimonides' Mishne Torah (Hilkoth Ishuth 16:4), which says that a sworn oath was administered only to a man's widow, but not to a man's divorced wife.
[43] That is, when the schools of Hillel and Shammai came together in the upper room of Hananiah ben Hizkiah ben Guron (see: Mishnah Shabbath 1:4) to make eighteen new enactments or decrees, the prohibition of making use of butter belonging to the gentiles was not one of them.
[44] i.e., In the eventuality that the polluted vessels were beyond a day old since their contracting uncleanness.
[45] A San'ani elder once told me that if suet were added to butter, it would turn foul. Therefore, it's outcome is sufficient proof of its cleanness. In the Commentary of Rabbi Yoseph Qafih on Maimonides Mishne Torah, H. Ma'achaloth Asuroth 3: 15, he writes that the vessels used in Yemen for storing butter were used by the gentiles strictly for butter, and for nothing else. The book, Sefer Mitzvoth Qetanoth, also permits the eating of butter taken from gentiles.
[46] Thus writes Rabbi Yoseph Qafih in his commentary on Rambam's "Mishne Torah," ibid., footnote # 12.
[47] Thus writes Rabbi Hayim Kessar in his Questions & Responsa "Hahayim wehashalom," Yoreh De'ah, responsum # 4, as being a practice followed in Yemen by most people. So, too, did I hear from Shoshanna, the wife of Shalom Cohen, saying that this practice was prevalent in San'a. Ben-Ish Hai writes that this was also the custom of the Jews of Baghdad.
[48] The Yemenite custom here is brought down in an ancient Yemenite commentary on an early version of Rabbi Yitzhaq al-Fasi's "Halachoth" for Tractate Hullin. See: "Harif Lemesecheth Hullin," pp. 75-76, edited and published by Rabbi Yoseph Qafih in 1960 C.E.
[49] See: Rabbi Amram Qorah's book, "Sa'arath Teman," page 94, where he cites the Tosfoth in Avodah Zarah 35b, s.v., "Mikelal," saying that they permitted the bread of gentiles in their own place, since its prohibition did not spread in all places, based upon the leniency found in the Talmud (Avod, Zar. 35b) which says: "[Can we say], bread [of the gentiles] was not permitted in the Court [of Rebbe] because, as it might be implied [here], there are those [in another Court] who permit [its consumption]? Yes!" (It should be noted here that the Talmud brings down there another opinion, saying that Rebbe prohibited taking bread from a gentile bakery if there was a Jewish bakery in town. Even so, Rabbi Yoseph Hayim of Baghdad writes in his "Ben-Ish Hai," that the custom of the Jews of Baghdad was to take bread from a gentile bakery, even though there was also a Jewish bakery in town.) The rule with us which stands is this: "In a disputed matter which is only a rabbinic ordinance, one is advised to act leniently, while in a disputed matter which is a biblical ordinance, one is advised to act stringently." ספיקא דרבנן לקולא, ספיקא דאורתא לחומרא.
[50] See: Meqor Hayim 12:5, by Rabbi Yehiya b. Ya'akov Saleh (1804-1859).
[51] So writes Rabbi Yoseph Qafih in an ancient Yemenite Commentary, etc.
[52] i.e., since we suspect that the adhesion has made a perforation in the lungs. Rabbi Yehiya, the son of Rabbi David Mishreqi, wrote in his Questions & Responsa "Ravid Hazahav," responsum # 25, that this leniency was practiced in Yemen because of the "great loss" (הפסד מרובה) which would have otherwise been incurred. For, in Yemen, Moslems never bought animals butchered by Jews. In Israel, however, the general practice is to avoid buying meats with such problems.
[53] Literally, "replaced," or "changed."
[54] So writes Rabbi Yoseph Qafih in an ancient Yemenite Commentary, etc.
[55] So writes Rabbi Yoseph Qafih in an ancient Yemenite Commentary, etc.
[56] The custom is well-known, as testified by Maharitz in his commentary "Zevah Todah," on Maran's Hilkoth Shechita, Yoreh De'ah, section # 28, small item # 6. It is also mentioned by Rabbi Yehiya Badihi in his book, "Lehem Todah," a commentary on Maharitz's condensed version on the laws of ritual slaughter, "Sha'arei Qaddusha," 8:1, small item # 3. However, Rabbi Yehiya b. Ya'akov Saleh, in his "Meqor Hayim" 21:1, claims that the Yemenite custom is to make the blessing as prescribed by Maimonides, without saying "with earth."
[57] See also Rabbi Shalom b. Yehiya Hibshoush's book "Shoshannath Hamelekh" (Orah Hayim, 489:8), a condensed work on Maharitz's Questions & Responsa.
[58] This disavowal or cancellation of such declarations ensures that his wife's divorce will be legal, and that he has not declared before two witnesses, prior to this, that he was compelled against his will to divorce his wife, which would then make such a divorce illegal.
[59] So writes Rabbi Yoseph Qafih in his book, "Halikhoth Teiman," (first edition), p. 248.
[60] So writes Rabbi Yoseph Qafih in his book, "Halikhoth Teiman" (first edition), p. 250.
[61] So writes Rabbi Yoseph Qafih in his book, "Halikhoth Teiman" (first edition), p. 252.
[62] See: Maharitz's Questions & Responsa "Pe'ulath Sadiq," vol. I, responsum # 52 [53].
[63] The custom in Yemen was to perform these obsequies, i.e. to stop at seven stations while en route to the grave, only upon men and boys thirteen years old or older, but never for small children or women.
[64] See also the Talmud (Megillah 26a), the words of Rabbi Menahem, the son of Rabbi Yosi, ibid. See also Tosefta Megillah 4:14, where we learn: "They do not perform [the solemn obsequies of] 'Ma'amad u'Moshav' with less than ten persons, etc."
[65] Thus writes Rabbi Hayim Kessar in his Questions & Responsa "Hahayim wehashalom," Orah Hayim, responsum # 85 (beth), pp. 28-29, as being the practice followed in Yemen.
[66] So did I hear from Mori Shalom Cohen. See: Rabbi Yoseph Qafih's commentary on Rambam's "Mishne Torah," Hilkoth Avel 13: 8, footnote # 9. See also Maharitz's Questions & Responsa "Pe'ulath Sadiq," vol. I, responsum # 91 (92), as also the footnote appended there by Rabbi Shalom Yitzhaq Halevi.
[67] With the exception of Minhah (the Afternoon Prayer) prayed on the Sabbath day. At the conclusion of Minhah, they would go home to partake in the third Sabbath meal, staying there for the remaining part of the day, while each man prayed the Evening Prayer in his own house.
[68] The full version of this is as follows:
בריך שמיה דקודשא בריך הוא לעילא לעילא מכל ברכתא שירתא ותשבחתא ונחמתא די אמרינן בעלמא. תתקבל צלותי ובעותי עם צלותהון ובעותהון דכל בית ישראל קדם אבונא דבשמיא. יהא שלמא רבא מן שמיא וסיעתא ופורקנא ורוחא וחנא וחסדא ורחמי עלנא ועל כל קהלהון דכל בית ישראל לחיים ולשלום ואמרו אמן. עושה שלום במרומיו הוא ברחמיו וחסדיו יעשה שלום עלינו ועל כל ישראל וינחמנו בציון ויבנה ברחמיו את ירושלם בחיינו ובימינו בקרוב אמן ואמן.
[69] It is well-known that Rabbi Yehiya Qafih strongly opposed this change of custom, and wrote about it in his "Milchamoth Hashem." See what his grandson, Rabbi Yoseph Qafih, had to say about this matter in his Commentary on Rambam's "Mishne Torah," vol. II (Sefer Ahava), Seder Ha-Tefillah, footnote # 30.
