Hilchos Choshen Mishpat
Volume II : Number 19
A. In a certain synagogue an agreement has been made that Reuven and
Shimon will share the responsibility to blow Shofar each year. Reuven is
to blow on the first day of Rosh Hashana, and Shimon is to blow on the
second day. What should they do when the first day of Rosh Hashana falls
out on Shabbos, and the Halacha is that we do not blow? Does Reuven blow
the Shofar since he is supposed to blow first, or do we say that since
every year Shimon blows on the second day he does so this year also?
B. Reuven made an appointment to have a non-emergency operation done with
an expert surgeon three months in advance. On the day that the operation
was scheduled for, it was canceled because the operating room was not
available due to unforeseen circumstances.
Reuven is asking whether he has a right (according to Halacha) to request
that he be taken first the following day, and cause all of the patients
on line after him to reschedule their operations, or does he have to "go
to the back of the line" and wait another three months for his operation?
- A. In Question A, Shimon should blow on Sunday (the second day of Rosh
HaShana) as he usually does every year. However, it would be proper for
him to allow Reuven to blow the last thirty sounds, since these sounds
are blown as a custom and are not part of the Mitzvah of blowing Shofar.
- B. Regarding Question B, Reuven (the patient) has lost his turn, and
will have to reschedule his procedure. However, if there should be any
cancellations it would be proper that he have first rights to the slot
that has become available. (2)
(1) The Gemara In Succah (55a) states that although there were special
Psalms sung by the Leviim during Chol HaMoed (intermediate days) of
Succos, unique to each day, if one of the days would fall on Shabbos, the
Psalm for Shabbos (Mizmor Shir L'Yom HaShabbos) would be sung, and each
subsequent day they would continue in order. This means that during the
years that one of the days of Chol HaMoed would be Shabbos, the last
day's psalm would not be sung.
Based on this Gemara, the Teshuvos Ponim Meiros (Vol. 2 Siman 126)
deduces that the Torah approach is that when there are turns being taken,
similar to the "turns" for the Psalm of the day ordained by our Chaza"l,
and someone's turn was preempted, he should take the next available turn,
and the person with the last turn should lose his turn entirely.
Therefore, he concludes that in our case the person who was supposed to
blow Shofar on the first day should blow on the second, and the person
who was supposed to blow on the second should not blow at all.
However, the Shaarei Teshuva (Orach Chaim 581:7) disagrees, and says that
there can be no comparison between the Psalms sung by the Leviim and our
case. When discussing the order of prayers or Psalms, the overriding
issue is in what manner were they were instituted by our Chaza'l, and
which ones have priority. Therefore, the Gemara in Succah teaches us that
when one of the prayers are preempted and we aren't sure whether to
continue in order or skip the preempted one, we should continue in order.
This is because the prayers and Psalms that were instituted to be read in
the beginning of Succos are the more important ones, and take priority
over the later ones.
The overriding issue regarding determining the Baal Tokeah, however, is
entirely different. When a person has established a time when he blows
Shofar, or performs any Mitzvah on behalf of others, he has acquired a
right (Chazakah) that is Halachically his, and may not be taken away by
others. Therefore, when Reuven established a Chazakah to blow on the
first day, he acquired the right to that day and it's unique
characteristics, i.e. that the obligation to blow is Torah ordained,
although he will not have the chance to do so every year. Shimon has
acquired the right to blow on the day that the obligation is Rabbinic,
although he is guaranteed that he will not be preempted by Shabbos, since
Rosh Hashana can never fall on Friday according to our present Jewish
calendar. Therefore, it should be considered that each one has a separate
Chazakah on separate Mitzvos, since each one has it's own unique
qualities, and Shimon should retain his right to always blow on the
second day of Rosh Hashana.
(2) Regarding a doctor's appointment it would seem that even the Teshuvos
Ponim Meiros would agree that the patient does not acquire the right to
always be "next on line", rather he has only the right to the specific
time for which his appointment was scheduled. This is clear from the fact
that people commonly schedule appointments for the time which is most
convenient for them, even if there may be an earlier appointment
available. Therefore, when a person schedules a slot, he is not merely
taking his turn on line, rather, he "owns" that set time that has been
scheduled for him. It follows, then, that a patient who has had their
appointment canceled can not argue that he should precede everyone else
Additionally, it can be assumed that the office personnel scheduling the
appointments have no interest in allowing this patient to take the next
turn, causing them to have to reschedule all of the patients that follow.
It is much simpler for them to give him the next available time slot.
Therefore, when granting the appointment they intended merely to afford
him this time slot, and not the right to precede everyone else on line in
the event of cancellation (even though it is through no fault of his), as
this would cause them extra work and inconvenience. However, if there
would be another cancellation that would enable them to reschedule this
patient sooner and not have to go to the end of the line, he should be
given priority over the other patients that came later for this slot.
All of the above is accurate only when the doctor does not have a
specific rescheduling policy for cancellations. If he does, or even if
this specific doctor does not have a policy, but there is a certain
customary policy among doctors in that community (Minhag HaMakom), it
should be assumed that all appointments were scheduled based on those
policies and they should be followed.
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This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av
Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His
Column originally appears in Hebrew in Toda'ah, a weekly publication in
Jerusalem. It has been translated and reprinted here with his permission
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Please Note: The purpose of this column is to make people aware of Choshen Mishpat
situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each
individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the
presence of all parties involved!