Shkiyah and Bein Hashemashot in halacha

01.11.19

Question

Rabbi,
I heard from some people that the Mishna Brura was machmir to paskin like shitat HaGr”a to say that the beginning of Shabbat is from the shkiyah, but that in Europe some people still did work after the shkiyah. So is it possible nowadays that someone shouldn’t hold like the Mishna Brura on this? Also, if the Mishna Brura is right and the truth is like the Gr”a, then how’s it possible that some people can still hold like Rabbenu Tam and daven Mincha so late after the shkiyah?

Réponse

To the Questioner,

I can see from your question that you are someone who is well versed in the different opinions regarding the end of the day and bain hashemashot, and so I am quite sure that you are aware of the Rules of Psak as well.

Since the time of Moshe Rabbenu at Har Sinai, questions of mitzva application have been left to the discretion and weighted decisions of the Chachmei Yisrael. In other words, the definition and the principles of each and every mitzva were all given to Moshe Rabbenu at Har Sinai (Torat Kohanim, Behar 1), but the hundreds and even thousands of questions that would come up throughout history in regard to the technical applications of the mitzvot, were left to the Torah leaders of each generation to weigh the circumstances, and, based on the 13 Midos She’Ha’Torah Nidreshet Bahen, to render a decision in practice as to what to do (Rambam, Hakdama L’Pairush Hamishnayot Mi’seder Zeraim, piece beginning Dah). This decision would afterwards be accepted as the actual Psak even on the spiritual and “Shomayim (heavenly) level” above (Bava Metziah 59b).

Whenever such questions of mitzva application would arise in the time of the Sanhedrin, the Sanhedrin would gather for a vote in the issue, and the Psak for the entire nation would follow the majority opinion (Shmot 23:2). Due to the galut of the Sanhedrin and dispersion of Yidden throughout the Diaspora after the destruction of the Bet Hamikdash, each person would follow the Psak of the rabbi of his town (Shabbat 130a – “B’m’komo shel Rabi Yosi Haglili”). This Psak would be binding even in regard to decisions regarding the strictest Torah prohibitions (Shabbat 130a - “B’m’komo shel Rabi Eliezer”). 
 
The question of when the day ends was not one that arose in the time of the Sanhedrin. It was only later, closer to the times of the Geonim and the Rishonim, that when learning the descriptions that the Gemara presents in regard to the “twilight time” of bain hashemashot (Shabbat 35a, Pesachim 94a, Berachot Yerushalmi 3, 4), that the question arose as to how to understand what the Gemara is relating to us.

Therefore, the way that Jewish people act in practice in regard to applying the criteria of what constitutes “the end of the day” in regard to any mitzva, will be dependent upon the halachic understanding and Psak of their personal Rav. Even if the majority of Rabbonim in a today’s generation were to hold one way, it would still not be enough nowadays to sway the Psak of any individual Rav to follow the majority, being that we are not living in the time of the Sanhedrin.

That is the basic answer as to why there may have been people in previous generations who did work on Erev Shabbat even following the shkiya and as to why some people daven mincha very late – at times even once some stars have come out.

But your question arouses the reconsideration of this issue again according to our reality today: In present times, the Jewish people are more united communication-wise on the world level than in any of the previous generations. Maybe it really has come the time to re-examine the Psak of the previous generations and then to observe objectively how that Psak is followed today by the different world kehillot, and then to formulate some sort of unified Psak based on the majority opinion which could then apply to all the communities in Klal Yisrael.

 *** 
When you learn the words of Chazal in the Gemaras that discuss the time of bain hashemashot (Shabbat 35a, Pesachim 94a, Berachot Yerushalmi 3, 4), it is clear again and again that the words “mishetishka hachama” are used. These words imply that the time of safek and uncertainty of bain hashemashot as to whether it is day or night, is something that begins immediately “mishetishka hachama” – from the moment of the sun setting from our eyes.

Even according to the opinion of Rabi Yosi (Yerushalmi Brachot 3b, and Shabbat 34b), who says that the time of safek is only a split-second, there are two opinions in the Yerushalmi in Brachot as to whether that split second is at the end of the 9-13.5 minute “twilight time” which is described by the other Tanaim [Rabi Yehuda 12-13.5 and Rabi Nechemya 9], or whether each and every split second within that twilight time – including the very first split second after the sun setting from our eyes - is the bain hashemashot. Therefore, even the opinion of a Tana that does not quote the bain hashemashot as beginning from “mishetishka hachama”, is also understood [according to the opinion of Rabi Chizkiyah] as begining from the moment of the sun setting from our eyes.

And even though according to one opinion among the Amoraim of how to understand the opinion of Rabi Yehuda [Rav Yosef (Shabbat 34b)], that right after the sun sets there is still a margin of time that is considered certainly day and is not safek, nonetheless, the Rif (Shabbat, page 15a in the pages of the Rif) states that we do not Paskin like that Amora, but rather like the second Amora (Rabbah) who is of the opinion that also according to Rabi Yehuda the “twilight time” of bain hashemashot begins immediately after the sun setting from our eyes.

The logical conclusion from all the aforementioned sources is that from the point of sunset we must relate to that time period as already being possibly night. This is the Psak of the Rif who writes explicitly at the end of Perek Shaini of Shabbat (Ibid): “And since it is not clear to us according to whom is the Psak [of the Gemara], we need to act in stringency since it is [a question of] issur; and [any] doubt in regard to issur [requires us] to act stringently… Therefore, from the time of sunset, the day [of Shabbat] becomes sanctified, and is prohibited in the performance of work.” (See also the Biur Halacha in Siman 261 (piece beginning mitchilat ha’shekiah) for a detailed list of all the additional Geonim [Rabbenu Shrira Gaon, Rav Hai Gaon, Rabbenu Nisim Gaon] , Rishonim [Rabi Avraham Hachasid the son of the Rambam, who brings this as the opinion of the Rif, the Rambam and Rashi, the Rava”n, Maharam Alshakir] and Achronim [Shach siman 266:11, Maharlbach, Maharal MiPrague, the Gr”a] who hold like this Rif.)

***
The answer that Rabbenu Tam offers in Tosfos Shabbat 35a (piece beginning trai), which causes us to change the translation of the words “mishetishka hachama” from their simple meaning of “from when the sun sets” to now refer to a later time which is 58.5 minutes after the sun actually sets from our eyes, is simply in order to resolve the Gemara in Shabbat (34b-35a) with the Braisa in Gemara Pesachim (94a) which states that there is a time lapse of 72 minutes between from when the sun sets from our eyes and until the stars come out. But 1): The Gemara in Pesachim does not mention bein hashmashot at all, and it only intends to present a measurement for the time between sunset and tzait hacochavim; 2): there is an alternative answer to resolve the the Gemara in Shabbat with the Braisa in Gemara Pesachim, that is, that the Gemara in Pesachim means to say that 72 minutes is the time required for all the stars to come out – even though three medium stars are enough already to determine that it is night and bein hashmashot has already ended (and that can take place in a much shorter time than 72 minutes and closer to the sunset); 3) Tosfos themselves are immediately aware of the difficulty in suggesting that the words “mishetishka hachama” which are mentioned in the Gemara Shabbat should mean a time that is 58.5 minutes later then when the sun actually sets, because then it is difficult to understand what the machloket in the Gemara (34b) is about regarding the length of that bein hashmashot, since its end-point would then simply be tzait hacochavim, and everyone agrees that tzait hacochavim is already night and that time is clearly observable. Therefore, the chidush of Rabbenu Tam to say that there exist two shkios, is really the more difficult pshat to learn in the Gemara.

When we come to the question of how to act in regard to the issur melachah of Shabbat, it would therefore seem clear that the Psak should be to refrain from all melachah immediately once the sun sets from the horizon and is covered from our eyes – as the Rif had paskened. This is actually how the Tur does paskin in Siman 261 - that the time of bein hashmashot is “mishetishka hachama” - without mentioning the opinion of Rabbenu Tam at all. It is actually the Bet Yosef who brings the opinion of Rabbenu Tam in his Pairush on the Tur, and who learns from the fact that the Rosh and the Tur made no mention of the opinion of Rabbenu Tam, that it seems that it is due to the fact that they were unsure how to pasken on this issue. In contrast, the Ra”n on the Rif (Ibid) brings the opinion of the Ramba”n who clearly held like Rabbenu Tam and in his compilation of the Shulchan Aruch, in Orach Chaim 261:2, the Bet Yosef brings the opinion of Rabbenu Tam and the Ramban as the actual Psak. This is the Psak which allows for doing work as the Shabbat enters – even after the sun sets and is covered from our eyes[1].
 
  ***
What is important to clarify at this point, is that although we have no measuring stick to even evaluate the greatness of the Bet Yosef and his zchut in regard to all of Klal Yisrael by writing the holy compilation of the Shulchan Aruch [and by doing so he, in fact, reinstated a little of what went on back in the time of the Sanhedrin[2]] - but there remain a few places in the Shulchan Aruch where the majority of the poskim differ with the Psak of the Shulchan Aruch. See for example Orach Chaim 75:6, where the Bet Yosef paskins that closing one’s eyes opposite an immodest uncovered-ness is enough to recite Torah and tefillah, and virtually all the later poskim disagree and require turning to a different side as well. In such cases it is clear that we follow the opinion of all of the Achronim, even though the Psak written in Shulchan Aruch allowed for more leniency in the matter. Similarly, in regard the the Psak of bein hashemashot, if virtually all the other poskim hold like the Rif and the Tur, then we should follow the other poskim even though the Psak written in Shulchan Aruch allows for more leniency in the matter. 

Furthermore, in this specific matter of defining the bein hashemashot and the beginning of a day in regard to a Torah requirement, the Bet Yosef himself on the Tur in Hilchos Milah (Yoreh deyeh 266, piece beginning safek) brings the opinion of the Ba’al Ha’itur: since the time of bein hashemashot is a safek, we need to always go stringent and to not allow a child to be maled on Shabbat if he was born at any point during bein hashemashot of eight days earlier. And the Bet Yosef paskens like the Ba’al Ha’itur in the Shulchan Aruch as well (266:9)[3]. Not only that, but in regard to determining the exact day of a child’s birth in order to fulfill the Torah command of Milah, the Bet Yosef paskens furthermore, that a child who was born once small stars are actually seen in the sky would be considered definitely as if he was born at the nighttime, even though there is still light outside like day! (Siman 262:5).

Based on all of the above, it would therefore now seem, that in regard to doing work after the shkiya on Erev Shabbat, the Psak in practice should be l’chumra, similar to the opinion of the Ba’al Ha’itur in regard to Milah. Therefore, the Mishna Brura certainly has a great zchus for bringing this issue to peoples cognizance, and that baruch Hashem, we can say today achshar darah in regard to this halachah, and that it is no longer accepted in any Jewish Orthodox community worldwide to do a melachah after the sunset like once may have been customary among some in Europe.

And based on everything mentioned above, it would now seem that one should not even be lenient to rely l’chatchila on shitat Rabbenu Tam to be lenient even in regard to a D’Rabbonon – like davening mincha. Because in Orach Chaim (Siman 233) where the time of mincha is defined, the Bet Yosef does not even mention the opinion of Rabbenu Tam and the possibility of relying on shitat Rabbenu Tam in order to lengthen the time for davening mincha – not in his commentary on the Tur, and not in Shulchan Aruch. All he mentions there is that Mincha cannot be davened at night – without any discussion whatsoever as to what constitutes night. It is just a minhag that has developed by association – to extrapolate from the shitat Rabbenu Tam that is brought by the Bet Yosef in Hilchot Shabbat, and to use it as a halachic reason for permissibility to lengthen the time in regard to the davening of Mincha. This entire leniency is not even so needed nowadays when, Baruch Hashem, in most Orthodox Jewish communities today worldwide there are minyanim easily available to daven Mincha before the shkiya.

Sometimes, what is used as supportive logic to daven mincha long after the shkiya is the Gemara in Brachot (29b): “Amar Rabi Chiya bar Abba amar Rabi Yochanan, Mitzva l’hispallel im dimdumei chamah” – “It is a mitzva to daven at the time of ‘the drops of the sun’”, and Rashi explains: Shachris at netz hachamah and Mincha at shkiyas hachamah. This sounds as if it is better to daven Mincha what later. However, in that very same Gemara one line later the Gemara reports: “In Ma’arava (Eretz Yisrael) they   would curse anyone who would daven with ‘the drops of the sun’ (shkiya) – For what reason? [Because] it is likely that [by davening so late] he will miss the time entirely.”

There are some individuals who might add an additional reasoning for davening mincha late, based on a practice of some great tzaddikim who would daven specifically all the way at the end of a davening period, so that their tefillah could uplift and fill-in for anything that was missing in the tefillos of the rest of Klal Yisrael. But one must be realistic with himself. If he is not truly on that level of uplifting the tefillos of others (for example, he is still struggling with his own tefillah to make sure that it is done with full kavana), then he shouldn’t ascribe to himself the intent of the tzadikim in regard to allowing a leniency for him to daven mincha late.

If we are true to ourselves, then we will be able to admit that the davening of mincha that goes on today very long after the shkiya – and even sometimes after the stars have come out (which certainly puts it into a category of concern in regard to brachos l’vatalah) -  is largely due just to the fact that many of us have just become accustomed to doing so, and the ability to change this pattern will only be as hard as changing any conditioned habit for the sake of fulfilling the mitzvos properly, once we are convinced of the necessity to do so.

SUMMARY: What the Mishna Brura has been zoche to achieve by making people aware of the shitat HaGeonim in regard to shkiya on Erev Shabbat - that almost no religious Jew today will do melacha on Erev Shabbat after the shkiya - is a practice that was necessary to be enacted just by learning the sources in regard to “the end of the day” and understanding how the halacha in practice is reached. Therefore, no one today should seek to “go backwards” and try to “reinstitute”, chalilah, the practice that some Jews had in the past of dong melacha on Erev Shabbat past the shkiya. The halachic basis to rely upon the answer of Rabbenu Tam in Gemara Shabbat as a factor to determine leniency in regard to a Torah (“skilah”) Prohibition, is very weak. It is so weak halachically, that as a matter of fact one should preferably not even rely upon it to use as a leniency for tardying the time of Mincha, but should rather follow the decision of the Mishna Brura (233) to complete Mincha before the shkiya, or at the latest, by 13.5 minutes following the shkiya.

[All of the above is only in regard to the starting time of Shabbat. In regard to Motzei Shabbat all Poskim agree that one must wait to do any melachah until it is certainly tzais hakochavim of three small stars that are close to each other, as is stated in Shulchan Aruch Orach Chaim 293:2.]

With blessings,
Rav Nachum
 
[1] It is important to note that the Rashba, one of the closest talmidim of the Ramban, questions the Ramban’s conclusion from the Gemara that the shkiya is later than when the sun goes down.  The Rav Hamagid on the Rambam, after bringing the Ramban’s opinion, also ends off in question.  
[2] See Introduction to the Shulchan Aruch Orach Chaim where the Bet Yosef writes that his guiding principle for Psak in the entire Shulchan Aruch was to take the opinions of the three great earlier Poskim: the Rif, the Rambam and the Rosh, and to pasken however the two held against the third. It comes out, that although after the time of the Sanhedrin we could generally not measure in any generation what the majority of all the Poskim worldwide held on any given issue, once enough time goes by and it’s possible to “look back” collectively at all the psakim of a previous generation, then once again the rule of “after the majority you shall follow” could apply. And this is what the Bet Yosef did by paskening consistently in the Shulchan Aruch according to the consensus of the two (majority) against the one. For this reason, since the Shulchan Aruch duplicates, in a certain sense, the decision of the Sanhedrin based on the Torah obligation of “Acharei Rabim L’hatot” [with the additions of the Rama that include the majority opinion from among the Askenazic Poskim], have become obligatory for all Yidden to follow today.
 
[3] Some opinions even express that the Psak of the Bet Yosef in Hilchot Milah almost cancels out the Psak in Hilchot Shabbat, because it was written chronologically later on by the Bet Yosef.