Whose Mitzvah is it?
A Halachic discussion on the rights to the Mitzvah of blowing shofar on the second day, when the first day falls on Shabbos
In the first Siman of the laws of Rosh Hashona, the Shulchan Aruch[1] discusses who should serve as the Shaliach Tzibbur or Baal Tokeia during the Yomim Noraim. It also discusses what qualities one should look for when appointing someone to these positions.
The laws of Chazaka
One of the Halachic discussions raised in the commentaries on this Siman is the issue of Chazakos – precedent and entitlements to the various positions. This is a serious issue and it can unfortunately be the source of Machlokes and even Dinei Torah.
The Magen Avraham[2] writes that it is the Minhag that if a person served as the Shaliach Tzibbur or Baal Tokeia for the Yomim Noraim, we do not give the Mitzvah to another person. This applies to the Shaliach Tzibbur for any of the High Holiday Tefillos.
Sefer Chassidim[3] writes that any Mitzvah that a person is accustomed to performing, if he does not perform it, he is liable for punishment. This is another reason to preserve the Chazakos.
Chazaka only applies when the person was appointed, not when they took the Mitzvah by themselves[4]. If the Chazzan served for many years and no one protested, there is a presumptive Chazaka[5].
Pri Megadim writes that this Chazaka only applies if they have served in that capacity and fulfilled the Mitzvah three times[6]. However, other Poskim rule that in regards to Mitzvos, even one time is sufficient to establish a Chazaka[7].
Some Poskim[8] make the following distinction; If the person was appointed by the community, the Chazaka is established by even one occasion. If they took the position themselves or without Reshus, if they served three times without protest, it will create a Chazaka.
To illustrate how seriously the issue of Chazaka is treated, Ketzeh Hamateh[9] records a Machlokes that arose in a particular community. The Baal Tokeia who had a Chazaka, did not follow the custom of the Mahari”l, as brought by the Ram”o[10], to position the mouth of the Shofar upwards when blowing. Even though the candidate proposed to replace him was a Talmid Chochom, who was careful with Mitzvos, it was questionable whether one could remove the first Baal Tokeia because of this[11].
A Chazaka is not inherited unless it is the express custom of the community[12]. It is the right of the community to select the replacement, although, if the son of the deceased is qualified, preference should be given to them.
Some Poskim write that Chazaka only applies if the Baal Tokeia or Shaliach Tzibbur is not paid. If they receive payment, there is no Chazaka[13]. The rationale is that the Mitzvah belongs to the one who is paying for it, not the one who fulfills it.
However other Poskim disagree and apply Chazaka even when they are paid positions[14].
If a person sees that the community do not want them to serve in the position and that insisting on their Chazaka rights would lead to Machlokes, it is advisable for the Shaliach Tzibbur to stand aside[15].
These are some of the main points discussed by the Poskim on the topic of Chazakos. They also discuss what happens if the Shaliach Tzibbur becomes an Avel (mourner), or if they are unable to serve one year due to illness or other circumstances.
When the first day falls on Shabbos
When Rosh Hashona falls on Shabbos, the following Shaalah arises concerning Chazakos;
In a community where there is a different Baal Tokeia for each of the days of Rosh Hashona, what happens when Rosh Hashona falls on Shabbos and there are no Tekiyos on the first day?
Are the Tekiyos of the second day blown by the ‘first day’ Baal Tokeia or by the usual ‘second day’ Baal Tokeia?
The Pnei Mordechai connects this Shaalah and its resolution to that of a similar question;
Many Ashkenazi Kehillos insert Maaravis (Piyutim) in Maariv of the Yomim Tovim. There is a different Maaravis for each of the 2 nights of Yomtov. When the first night of Sukkos falls on Shabbos and Maaravis is not recited, the Magen Avraham[16] rules that the Maaravis of the first night is recited on the second night. He brings proof from the Gemora that it is always the ‘second’ that is deferred.
Even though other Poskim[17] disagree and rule that the Maaravis is recited on its usual night, since the Minhag follows the Magen Avraham, the same logic should apply here and the “first day” Baal Tokeia should blow on the second day.
Shaarei Teshuvah writes that these two cases are not comparable. When the Maaravis of the first night was instituted, the Takana may have been that when the first night would fall on Shabbos, this Maaravis would be read on the second night instead.
In our case however, we are discussing two individuals and a claim of Chazaka in Mitzvos, with each having a claim to their specific day. It would only be comparable if we say that the community appointed the Baal Tokeia to blow on the second day only when the Baal Tokeia of the first day fulfills his Mitzvah (on the first day).
But we cannot assume that the community prefer the first Baal Tokeia and do not want him to lose his Tekiyos. One could argue with the reverse logic as well; perhaps it is because they prefer the second Baal Tokeia that they appointed him for the second day of Rosh Hashona so that he will blow every year, as the second day cannot fall out on Shabbos.
Teshuvos Or Neelam writes that the Baal Tokeia of the first day blows the Shofar on the second day. This is because the Baal Tokeia of the first day has the Chazaka on the Shehecheyanu[18].
Parshas Mordechai[19] rules that in this case, both Baalei Tokeia have equal claim of precedence. This is because each day has a unique advantage. The advantage of the Tekiyos of the first day is that they are Biblical. But the second day has an advantage that it never falls on Shabbos. Therefore, each of the Baal Tokeia has a claim to be given the second day and we cannot defer one in place of the other.
Therefore, the community should choose the more fitting Baal Tokeia. If they are both of equal standing or if this will result in Machlokes, it is advisable to share the Tekios, having one blow the Tekiyos before Musaf and the other blow the Tekiyos during Musaf[20].
The most critical considerations
The discussion above relates to the Halachic basis for adjudicating this scenario. In all matters concerning Chazakos, the two most important points of consideration are;
If there is a pre-existing Minhag of the community, this Minhag supercedes all of the other Halachic considerations.
Secondly and perhaps most importantly, is the need to preserve Shalom (peace) in the community and between the individuals involved and to avoid creating Machlokes.
Rosh Hashona is a time of judgment and the blowing of the Shofar serves to arouse Hashem’s compassion to remember us and judge us favourably. The greatest vessel for Hashem’s blessings is our unity, as our sages teach that Hashem could not find a vessel for His blessings other than Shalom.
[1] Orach Chaim 581
[2] Orach Chaim 581:6
[3] Siman 529. Quoted by Ta”z 581:3
[4] See Mishna Berura 153:22.
[5] Based on Radba”z 4:11
[6] Eshel Avraham 6
[7] Shaarei Teshuvah 7 quoting the Siddur of Rav Yaakov Emden and his Teshuvah 2:69
[8] Ketzeh Hamateh
[9] On Mateh Efraim 581:30
[10] Orach Chaim 585:2
[11] In this case, there was also a question on the Kashrus of the Tekiyos as well. This is certainly grounds to replace the Baal Tokeia even against the Chazaka.
[12] Beis Yosef Orach Chaim 153 in the name of the Mordechai. Birkei Yosef quotes Kneses Hagedolah as writing that a Chazaka for a Mitzvah is inherited.
[13] Toras Chaim, Machaneh Chaim Mahadura Tinyana Siman 35
[14] Teshuras Shai Mahadura Kama Siman 453 based on Teshuvas Harashba 1:283
[15] Machatzis Hashekel 581:6
[16] Orach Chaim 641:1
[17] Levush – Minhag Posna
[18] Whether we recite Shehecheyanu on the second day of Rosh Hashona is a Machlokes between the Mechaber and Ram”o. Sefardim do not recite Shehechyanu. Asheknazim recite Shehecheyanu on the second day, although it is preferable for the Baal Tokeia to wear a new garment and have this in mind.
[19] Orach Chaim Siman 53
[20] See Ketzeh Hamateh on Mateh Efraim 581:30
The laws of Chazaka
One of the Halachic discussions raised in the commentaries on this Siman is the issue of Chazakos – precedent and entitlements to the various positions. This is a serious issue and it can unfortunately be the source of Machlokes and even Dinei Torah.
The Magen Avraham[2] writes that it is the Minhag that if a person served as the Shaliach Tzibbur or Baal Tokeia for the Yomim Noraim, we do not give the Mitzvah to another person. This applies to the Shaliach Tzibbur for any of the High Holiday Tefillos.
Sefer Chassidim[3] writes that any Mitzvah that a person is accustomed to performing, if he does not perform it, he is liable for punishment. This is another reason to preserve the Chazakos.
Chazaka only applies when the person was appointed, not when they took the Mitzvah by themselves[4]. If the Chazzan served for many years and no one protested, there is a presumptive Chazaka[5].
Pri Megadim writes that this Chazaka only applies if they have served in that capacity and fulfilled the Mitzvah three times[6]. However, other Poskim rule that in regards to Mitzvos, even one time is sufficient to establish a Chazaka[7].
Some Poskim[8] make the following distinction; If the person was appointed by the community, the Chazaka is established by even one occasion. If they took the position themselves or without Reshus, if they served three times without protest, it will create a Chazaka.
To illustrate how seriously the issue of Chazaka is treated, Ketzeh Hamateh[9] records a Machlokes that arose in a particular community. The Baal Tokeia who had a Chazaka, did not follow the custom of the Mahari”l, as brought by the Ram”o[10], to position the mouth of the Shofar upwards when blowing. Even though the candidate proposed to replace him was a Talmid Chochom, who was careful with Mitzvos, it was questionable whether one could remove the first Baal Tokeia because of this[11].
A Chazaka is not inherited unless it is the express custom of the community[12]. It is the right of the community to select the replacement, although, if the son of the deceased is qualified, preference should be given to them.
Some Poskim write that Chazaka only applies if the Baal Tokeia or Shaliach Tzibbur is not paid. If they receive payment, there is no Chazaka[13]. The rationale is that the Mitzvah belongs to the one who is paying for it, not the one who fulfills it.
However other Poskim disagree and apply Chazaka even when they are paid positions[14].
If a person sees that the community do not want them to serve in the position and that insisting on their Chazaka rights would lead to Machlokes, it is advisable for the Shaliach Tzibbur to stand aside[15].
These are some of the main points discussed by the Poskim on the topic of Chazakos. They also discuss what happens if the Shaliach Tzibbur becomes an Avel (mourner), or if they are unable to serve one year due to illness or other circumstances.
When the first day falls on Shabbos
When Rosh Hashona falls on Shabbos, the following Shaalah arises concerning Chazakos;
In a community where there is a different Baal Tokeia for each of the days of Rosh Hashona, what happens when Rosh Hashona falls on Shabbos and there are no Tekiyos on the first day?
Are the Tekiyos of the second day blown by the ‘first day’ Baal Tokeia or by the usual ‘second day’ Baal Tokeia?
The Pnei Mordechai connects this Shaalah and its resolution to that of a similar question;
Many Ashkenazi Kehillos insert Maaravis (Piyutim) in Maariv of the Yomim Tovim. There is a different Maaravis for each of the 2 nights of Yomtov. When the first night of Sukkos falls on Shabbos and Maaravis is not recited, the Magen Avraham[16] rules that the Maaravis of the first night is recited on the second night. He brings proof from the Gemora that it is always the ‘second’ that is deferred.
Even though other Poskim[17] disagree and rule that the Maaravis is recited on its usual night, since the Minhag follows the Magen Avraham, the same logic should apply here and the “first day” Baal Tokeia should blow on the second day.
Shaarei Teshuvah writes that these two cases are not comparable. When the Maaravis of the first night was instituted, the Takana may have been that when the first night would fall on Shabbos, this Maaravis would be read on the second night instead.
In our case however, we are discussing two individuals and a claim of Chazaka in Mitzvos, with each having a claim to their specific day. It would only be comparable if we say that the community appointed the Baal Tokeia to blow on the second day only when the Baal Tokeia of the first day fulfills his Mitzvah (on the first day).
But we cannot assume that the community prefer the first Baal Tokeia and do not want him to lose his Tekiyos. One could argue with the reverse logic as well; perhaps it is because they prefer the second Baal Tokeia that they appointed him for the second day of Rosh Hashona so that he will blow every year, as the second day cannot fall out on Shabbos.
Teshuvos Or Neelam writes that the Baal Tokeia of the first day blows the Shofar on the second day. This is because the Baal Tokeia of the first day has the Chazaka on the Shehecheyanu[18].
Parshas Mordechai[19] rules that in this case, both Baalei Tokeia have equal claim of precedence. This is because each day has a unique advantage. The advantage of the Tekiyos of the first day is that they are Biblical. But the second day has an advantage that it never falls on Shabbos. Therefore, each of the Baal Tokeia has a claim to be given the second day and we cannot defer one in place of the other.
Therefore, the community should choose the more fitting Baal Tokeia. If they are both of equal standing or if this will result in Machlokes, it is advisable to share the Tekios, having one blow the Tekiyos before Musaf and the other blow the Tekiyos during Musaf[20].
The most critical considerations
The discussion above relates to the Halachic basis for adjudicating this scenario. In all matters concerning Chazakos, the two most important points of consideration are;
If there is a pre-existing Minhag of the community, this Minhag supercedes all of the other Halachic considerations.
Secondly and perhaps most importantly, is the need to preserve Shalom (peace) in the community and between the individuals involved and to avoid creating Machlokes.
Rosh Hashona is a time of judgment and the blowing of the Shofar serves to arouse Hashem’s compassion to remember us and judge us favourably. The greatest vessel for Hashem’s blessings is our unity, as our sages teach that Hashem could not find a vessel for His blessings other than Shalom.
[1] Orach Chaim 581
[2] Orach Chaim 581:6
[3] Siman 529. Quoted by Ta”z 581:3
[4] See Mishna Berura 153:22.
[5] Based on Radba”z 4:11
[6] Eshel Avraham 6
[7] Shaarei Teshuvah 7 quoting the Siddur of Rav Yaakov Emden and his Teshuvah 2:69
[8] Ketzeh Hamateh
[9] On Mateh Efraim 581:30
[10] Orach Chaim 585:2
[11] In this case, there was also a question on the Kashrus of the Tekiyos as well. This is certainly grounds to replace the Baal Tokeia even against the Chazaka.
[12] Beis Yosef Orach Chaim 153 in the name of the Mordechai. Birkei Yosef quotes Kneses Hagedolah as writing that a Chazaka for a Mitzvah is inherited.
[13] Toras Chaim, Machaneh Chaim Mahadura Tinyana Siman 35
[14] Teshuras Shai Mahadura Kama Siman 453 based on Teshuvas Harashba 1:283
[15] Machatzis Hashekel 581:6
[16] Orach Chaim 641:1
[17] Levush – Minhag Posna
[18] Whether we recite Shehecheyanu on the second day of Rosh Hashona is a Machlokes between the Mechaber and Ram”o. Sefardim do not recite Shehechyanu. Asheknazim recite Shehecheyanu on the second day, although it is preferable for the Baal Tokeia to wear a new garment and have this in mind.
[19] Orach Chaim Siman 53
[20] See Ketzeh Hamateh on Mateh Efraim 581:30