May the Korban Pessaḥ be Eaten on Upper Floors? By Rabbi Arie Folger

The Talmud Bavli, Pessaḥim 85b-86a seems to conclude unequivocally that Qodashim Qalim, including but not limited to the Qorban Pessaḥ, which may be eaten in the entire city of Yerushalayim, may only be eaten on the ground floors:

Rav said: The roofs and the upper chambers were not sanctified. But that is not so, for Rav said on the authority of R. Ḥiyya: „There was [only] as much as an olive of the Passover-offering [to eat], yet the Hallel split the roofs!“ Does that not mean that they ate on the roof and recited [the Hallel] on the roof? No: they ate on the ground and recited [it] on the roof. Yet that is not so, for surely we learned: „You must not move on after the Paschal meal to the aftermeal (the ‚Afiqoman‘)!“ and Rav said: „[That means] that they must not remove from one company to another?!“ — There is no difficulty: there it is at the time of eating; here it is not at the time of eating.

Yet, as the Minḥat Ḥinukh noted (in the Mekhon Yerushalayim edition §362:5), this halakha is glaringly missing in the Rambam. Thus, in Hilkhot Ma’aser Sheni (2:16 [18]), where he defines what does and doesn’t count as Qedushat Yerushalayim, we read:

Houses incorporated into the city wall, whose doors are to the interior of the walled in area, whose space extends outside the wall, [those parts of the building that are] within the wall are considered within for all matters; those areas that are beyond the wall we treat stringently and neither eat there [the second tithe and the fruits of the fourth year orchard], nor do we redeem [them] there. When their space was within the walled in area, but the opening of the space is outside the city wall, [those parts of the building that are] outside the wall are considered outside, and we may redeem [the second tithe and the fruits of the fourth year orchard], and we do not eat it there; while in those areas within the wall we neither eat nor redeem [them], so as to be stringent. The windows and the thickness of the wall are like the inside.

Rambam covers trees (in the previous halakha), the city wall, extensions outside the city walls, buildings inaccessible from inside the city walls, but no mention of upper floors, even though those were surely a lot more common that rooms adjacent to and extending or eating into the walled area. The omission is glaring.

In another relevant passage (Hilkhot Beit ha-Beḥira 6:7) dealing with the sanctity or lack of sanctity of upper floors of the Beit ha-Miqdash, the omission of the upper floors of Yerushalayim homes is again glaring:

The chambers [by the walls of the Temple] that are built in the sacred area and that open out onto the non-sacred area, when their rooftops were level with the floor of the Temple courtyard, then their insides are considered non-sacred, while their rooftops are considered sacred. When however their rooftops are not level with the Temple courtyard, then even the rooftops are non-sacred, for rooftops and upper floors were not sanctified. Consequently, we may neither eat there most-holy sacrifices, nor slaughter there simple-holy sacrifices.

Rambam explicitly disqualifies upper floors of the Beit haMiqdash complex for the purpose of slaughtering Qodashim Qalim, and yet “forgets” to discuss the related halakha of the fitness of upper Yerushalayim floors for eating those very same qorbanot.

Are we to conclude that according to Rambam, the Qorban Pessaḥ and other Qodashim Qalim meats (and all the more so Ma’aser Sheni and the like) may be eaten on upper floors? If so, how would Rambam deal with the citation from the above explicit Gemara in Pessaḥim?

As it turns out, there are indeed explicit opinions ruling the upper floors of Yerushalayim buildings to be fir for consuming there Qodashim Qalim. The notes of Mekhon Yerushalayim to the Minḥat Ḥinukh (#15) cite Rashba (Responsa #34) as explicitly permitting the consumption of Qodashim Qalim on the rooftops of Yerushalayim. Minḥat Ḥinukh himself concedes the existence of such a view, which he finds explicitly in Maharsha Makkot 12a, who comments on a Tosafot:

He means that we do not say that the roofs weren’t sanctified, except that the rooftops of [the buildings opening onto] the Temple courtyard do not have the status of the Temple courtyard, but here, the space of Yerushalayim is like Yerushalayim.

How could such a view stand, given the explicit Gemara from Pessaḥim we cited in the beginning? Minḥat Ḥinukh makes a remarkable observation: When the Gemara there interprets sources to accord with Rav’s view, it only does so to make Rav internally consistent, as the Gemara simply cites different statements of Rav himself. Consequently, Minḥat Ḥinukh posits that the Gemara there makes no claim to the correctness of Rav’s view. Instead, says  Minḥat Ḥinukh, we may prove by glaring omission from a Mishna that an opposite view exists permitting consumption of Qodashim Qalim on upper floors and rooftops of Yerushalayim:

If a tree stands inside [the walls of Jerusalem] and leans outside, or stands outside and leans inside: from [the part of the tree] aligned with the wall and inwards should be considered inside, and from [the part of the tree] aligned with the wall and outwards should be considered outside. Olive press buildings whose openings are inside the wall but whose chambers are outside the wall, or whose openings are outside the wall but whose chambers are inside the wall: Beit Shammai says: all of it should be considered inside. Beit Hillel says: from [the part of the buildings] aligned with the wall and inwards should be considered inside, and from [the part of the buildings] aligned with the wall and outwards should be considered outside.

The chambers [by the walls of the Temple] that are built in the sacred area and that open out onto the non-sacred area, their insides are non-sacred and their roofs are sacred. If they are built in the non-sacred area and open out onto the sacred area, their insides are sacred and their roofs are non-sacred. If they are built in both the sacred area and non-sacred area and open out onto both the sacred area and the non-sacred area, [the parts of] their insides and roofs that align with the [border of the] sacred area and into the sacred area are sacred, and [the parts that] align with the [border of the] non-sacred area and into the non-sacred area are non-sacred. (Mishna Ma’aser Sheni 3:7-8)

These Mishnayot are the source of the two halakhot we cited early on from the Rambam. The very same omissions found in the Rambam are found in the Mishna, and taken together, the omission is indeed glaring enough as to constitute proof.

Such a view would, interestingly, distinguish between the upper floor of the Beit ha-Miqdash complex, which did not have sufficient sanctity to fulfill those mitsvot that must be performed in the ‘azara, and between the upper floors of Yerushalayim, which do have the same sanctity as the ground floors of the city. Why would there be such a difference?

Ra’avad (cf. note 13 in Minḥat Ḥinukh Mekhon Yerushalayim) posits that this was a historical accident: Had the beit din sanctified the upper floors of the Temple complex, they would have been as kosher as the ‘azara. Ra’avad acknowledges an opposing view by Rabbenu Elḥanan. Minḥat Ḥinukh seems to take an interim position, implying that the beit din could have sanctified the floors, but did not because that wasn’t part of the Divine plan as received by Tradition.

Rav Avraham Yafe-Schlesinger in his Beer Sarim (Vol. III §49) creatively suggests a meaningful answer. Drawing upon a seemingly superfluous comment by Ramban apparently needlessly explaining the obvious regarding the difference in sanctity between Yerushalayim and other cities of Yehuda, R’ Schlesinger reads into the Ramban that Yerushalayim posesses two different superimposed sources of sanctity: it has the status of the Maḥane Yisrael of the desert, a status it shares with other cities of Yehuda, and it also has an additional sanctity as being the chosen city for the Beit haMiqdash. Those sanctities are superimposed, such that, insofar as Yerushalayim is one of the cities of Yehuda and is a instance of Maḥane Yisrael, that sanctity only applies to the ground level, but insofar as Yerushalayim is also the space within which the Miqdash is located, that sanctity extends to upper floors and rooftops, as well.

One of the prooftexts R’ Schlesinger musters is from the following Mishna (Pessaḥim 7:8):

If the entire, or majority [of the, Pesach sacrifice] became impure, it must be burned in front of the palace [the Temple] with wood from the arrangement [set up for the altar]. If the lesser part of it became impure, or [concerning] notar [a sacrifice that becomes unfit, due to being left unconsumed until after the time limit for its consumption], they must burn it in their [own] courts, or on their [own] roofs, with their own wood.

Why does the Mishna specify that small amounts of Qodashim meat that became impure must be burned “in their [own] courts, or on their [own] roofs?” That is easily explained by referring to a Mishna and a Gemara. The Mishna (Pessaḥim 3:8) teaches:

And so too, one who went out of Jerusalem and remembered that he is carrying meat that is holy [consecrated]; if he has passed [Mt.] Scopus, he must burn it on the spot; and if not, he must return and burn it in front of the castle [the Temple], with wood from the arrangement [set up for the altar].

Hence we learn that sacrificial meat should preferably be burnt within a holy precinct. The Gemara (Pessaḥim 24a) elaborates:

It was taught in a baraita that Rabbi Shimon says: “In the sacred place…shall be burnt with fire”; this taught that one must burn a disqualified sin-offering in the sacred place, and not outside the Temple. And I have only derived this, meaning the sin-offering. From where do I derive that disqualified offerings of the most sacred order and portions consumed on the altar, such as the fats of offerings of minor sanctity that become impure, are burned in the Temple courtyard? The verse states: “In the sacred place…shall be burnt with fire.” This indicates that any disqualified offering must be burned in the sacred place.

According to the above citations, the flesh of Qorbanot that became disqualified had to be burned ba-qodesh, in a holy place, and yet, when the flesh had been legitimately taken out of the Beit ha-Miqdash complex for eating in Yerushalayim, and subsequently became disqualified as notar, because the time limit before which the meat had to be consumed had passed, people’s own courtyards and rooftops were holy enough to burn the remaining meat up right there. Hence, argues R’ Schlesinger, the city rooftops must indeed have had the requisite sanctity.

However, R’ Schlesinger also finds that Rambam, whom until now we assumed considered the rooftops holy, oddly does not mention the rooftops as being appropriate for burning disqualified sacrificial meat. This is mysterious and left as an open question.

Anyway, having reviewed the views of the Rishonim and the sources on which they base themselves, one can surely not conclusively disqualify the fitness of rooftops and upper floors of Jerusalem from being used for eating Qodashim Qalim. Bimheira yibaneh ha-Miqdash, and we may appreciate that there are strong reasons to assume that the halakha may be lenient on this matter. Surely that may be a great relief when we try to accommodate sedarim for millions of Jews joining in for eating the Qorban Pessaḥ. May we merit to live to see this happen, amen.

 

Rabbi Arie Folger is the chief rabbi of Vienna, Austria, and a member of the Rabbinical Court of Austria. Previously, he served as the senior rabbi of the community of Basle, Switzerland, and later Munich, Germany. He was ordained at RIETS, where he learned after learning several years at the yeshivos of Gateshead, Mir Yerushalayim and Chaim Berlin and holds an MBA from New York University. He is presently a member of a chavura of German rabbis at Kollel Eretz Hemda. Rabbi Folger has held several elected positions within the Rabbinical Council of America and the Conference of Orthodox Rabbis of Germany, and is a member of the Standing Committee of the Conference of European Rabbis.

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Hannukah’s Insight into Abuse, by Rabbi Andrew Rosenblatt

Various Midrashim offer descriptions of the spark that ignited the Hasmonean rebellion.  Some speak of the violation to the sanctity of the Temple. There is one Midrashic account that that has particular resonance this year. The Midrash is quoted in compendiums of minor Midrashim such as Otzar haMidrashim by R. Judah David Eisenstein (N. Y., 1915) and the Yotzer (additional prayer recited before Shema) for the first Shabbat of Chanukah written by Yosef ben Shlomo (1033):

The [Kingdom of Yavan (Seleucid)] further decreed that when one is to be married, the overlord should enjoy the marital bed first and then the bride would be returned to her husband. This carried on for three years and eight months until the daughter of Rabbi Yochanan Kohen Gadol was to be married. When they were about to take her to the overlord, she uncovered her hair and ripped her clothing in a revealing fashion in front of all. Immediately, Yehudah and his brothers were filled with rage and said to her take her out and burn her, “so that such a scandal not be revealed to our governors for fear of our lives for she was unclothed before all.” She then said to them, “How am I to be disgraced before kith and kin and not so before the eyes of the uncircumcised and impure that you would have trespass against me and violate me?” When Judah and his brothers heard her words they concluded together that they would assassinate the overlord.  They dressed her in royal clothing, made a Chuppah for her and took her from the house of the Hasmoneans to the house of the overlord accompanied by lyre and flutes and musicians and they danced until they reached the house of the overlord  . . . Yehudah and his brothers entered the house and severed the head of the overlord . . .the Heavenly Voice spoke saying, ״a young girl succeeded in waging war on the mighty Antiochus.”

The Midrash tells a story all too familiar to us in 2017.  The story is of how power directly leads to abuse of the worst nature.  Furthermore, the Midrash emphasizes the failure of bystanders, particularly the future warriors, to properly provide safety against such abuse. The Midrash clearly draws from the story of Judah and Tamar with the words, “take her out to be burnt.” The Midrash thus invokes both the biblical Judah’s inaction and leaves the reader to fill in the words, she is more righteous than I. The story trumpets the bravery of the abused woman beyond that of the military heroes, it even credits her with the victory. Furthermore, the Midrash shows how the culture of Yavan (Seleucid) had infected the home itself. The heroic fulcrum of the story is accomplished when the young woman turns perceived indiscretion into collective outrage against the oppressor. Her willingness to standup against abuse, to call it out in so dramatic a fashion is in fact an act championing the sanctity of the home. One could see the march of the Chuppah to the door of the oppressor as literally the use of the home as the phalanx of attack. The great purifying groundswell of the Hasmonean movement can be understood as a uprising to protect the sanctity of the home and of the women at the same time. Lastly, there is a straight line between this event and the lighting of the candles. The Talmud instructs that the mitzvah of Channukah is Ner Ish u’Veto—a candle for a person and his home. Men and women alike are commanded specifically in their home, for both were party to the miracle and both are charged to protect the sanctity of the home and project that very kedusha from their home into the public space.

 

Rabbi Andrew Rosenblatt graduated from Columbia University with a Bachelors degree in Chemistry and English Literature and a Masters in Science in Bio-Organic Chemistry. Having finished secular studies, Rabbi Rosenblatt spent two years in Yeshivat Har Etzion in Israel which ultimately led him to receiving semicha from Yeshiva University in New York.  Rabbi Rosenblatt was the assistant rabbi in Congregation Ahavath Torah in Englewood, New Jersey and has been the Senior Rabbi of Scharei Tzedeck for the past 14 years. Rabbi Rosenblatt and his wife Dr. Cirelle Rosenblatt keep busy with their 5 children.

The Power of Rabbinic Authority and its Implications, By Rabbi Dr. Chaim E. Schertz

 

In Jewish tradition, there were two types of rabbis which were given different authorities: those who were ordained; and those who were not. Ordained rabbis were called Smuchin or Mumchin. The institution of ordination was initiated by Moshe Rabbenu when he ordained Yehoshua, and from that time on, each ordained rabbi could ordain others. Later on, during a specific period of the Patriarchate from the Second Century C.E. to the Fifth Century C.E., the Patriarch or Nasi was primarily responsible for the ordinations of rabbis. All ordinations could only occur in the land of Israel , and ordained rabbis could engage in all aspects of Jewish law. An ordained court of three who convened in the land of Israel is what the Torah calls elohimA court which was ordained in Israel could extend its authority to anywhere in the world. See Mishneh Torah, Shoftim, Hilchot Sanhedren Chapt. 4, Halachot 1-4 and 12.

Since ordination could not occur outside the land of Israel, what was the underlying authority of a court which was not ordained? The initial authority for courts outside of Israel was the appointment of rabbis and judges by the Head of the Exiles (Reish Galuta) which occurred in Babylonia after the first exile and ended in the Sixth Century C.E. That authority was also valid all over the world, including Israel. Nevertheless, it was far more limited than the authority given to ordained rabbis or courts. One example, is that those appointed by the Reish Galuta did not have the power to levy fines (Knassot). Ibid, 4:14.

In the absence of a Reish Galuta or his ability to appoint rabbinic courts, an interesting analysis is presented in the Talmud.

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Chanukah and the Power of Dedication, by Rabbi Dr. Chaim E. Schertz

At the beginning of chapter 8 of the Book of Bamidbar, Moshe informs his brother Aharon that God had commanded Aharon to light and clean the menorah. This section of the Torah follows the description of the gifts that were offered by the leaders of all the tribes at the dedication and sanctification of the altar. Utilizing the Midrash, Rashi asks the following question:

“Why is the section of the Torah which deals with the Menorah juxtaposed with the section that declares the gifts of the tribal leaders (Nesi’im)? Because when Aharon witnessed the dedication of the Nesi’im, he became dejected because he was not included with them, not he and not his tribe. God thus said to him, I swear to you that your offering will be greater than theirs because you will light and clean the menorah.”

The Ramban explains why the lighting of the menorah is the greater gift. It is based upon another Midrash in which God commands Moshe to tell Aharon, “there is another dedication where there is the lighting of candles and it will be given to Israel through your descendants. This is an occasion of miracles salvation and dedication . . .this is the dedication of the sons of the Hasmoneans. Thus there is this juxtaposition between this section of lighting of the menorah and the dedication of the altar. The celebration or observance that we call Chanukah thus has great standing in our tradition. It continues for thousands of years after the destruction of the Temple and is observed and is continued by the Jewish people well into their exile and ultimately their return to the land of Israel. It was ordained by God and directly transmitted to Moshe.

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Vulnerability of Virtue, Virtue of Vulnerability (Parashas Vayeira)

After many years of failing to have children, after having grown too old with her husband to conceive, Sarah did not expect to ever become a mother. So when the melachim — or, as she saw them, travelers — came to Avraham’s tent, promising her a son in a year, she cynically dismissed them. (The Ramban (Bereishis 18:15) notes that the phrase ותצחק בקרבה has the connotation of לעג, or cynicism. The Ramban references Tehilim 2:4 as another example: יושב בשמים ישחק ה’ ילעג למו.) The Ramban (Bereishis 18:15) claims Sarah made two missteps: Sarah, being a נביאה, should have had the spiritual sensitivity to recognize these “men” as malachim, but instead she thought they were travelers. The Ramban claims, moreover, even if she didn’t recognize them as malachim, she should still not have cynically dismissed their beracha, and instead have said, “כן יהי רצון”.

This criticism seems strange. As far as Sarah could tell, the people in her home were ordinary men — they did not deserve to be taken seriously. Moreover, Sarah herself was tortured by the fact that she could not have any children, so when these men said she would have a son in a year, she almost certainly felt that same pain all over again. Cynically dismissing their claims as impossible — as indeed they were — seems like a reasonable way for her to respond.

I think that the Ramban means that Sarah, as a tzadeikes , should have had the strength of character to confront her shortcomings. Sarah was a spiritually ambitious person: she desperately wanted to raise her children to be a part of Avraham’s bris with Hashem. Her ambitions made her vulnerable to the pain of failure — precisely because she placed so much value in having children, not being able to have children pained her. But a tzadeikis is expected not to shy away from this pain, but to overcome it. She cynically dismissed the malachim because to take them seriously would mean to admit to herself that she had not succeeded — to admit that she did not have the life she envisioned for herself.

Part of greatness is ambition and achievement: setting our sights high and pursuing our goals. But part of greatness is also accepting failure — even when that failure seems final. Seeking virtue makes us vulnerable to the pain of our disappointments. But there is also virtue in vulnerability — the power to accept these disappointments and the willingness to overcome them are the stuff of tzidkus.

The unforgivable sin I committed Yom Kippur morning

With my mind racing with what I would be saying in synagogue, how I will be praying, and the powerful meaning of this day, I barely noticed what was going on in the street. I rushed into synagogue thinking of ten different things at the same time. As I walked in, right when the service was about to begin, I looked around at the empty seats which would all be full once we got started, my eyes caught two young ladies sitting down, looking around with hesitation. They seemed like real outsiders; they did not know that most people don’t show up at the time the morning service is called for. They seemed unsure as to whether they were in the right seat or not, why the place was not full yet, and what prayer they should be saying right now. They projected uncertainty and insecurity.

My instinct pushed me to walk over to them, ask them where they are from, or if anything I can do for them. I didn’t. I had hundreds of people coming to the service, sermons and comments to deliver, and my own praying to do. I can speak to them when the service is over, I told myself. They will be fine, I thought–they weren’t.

Twenty minutes later I looked around again, they were gone. Realizing what had happened, I started to panic. I looked again. And again. And again. But they were gone. They had left the synagogue and I never saw them again.

These two young ladies, are just some of the thousands of Jews who step through our synagogues during the High Holiday season, and I was just one of the many who failed to engage them and make sure they felt welcome and at home in synagogue.

This was yet another validation of the statistics showing one of four Jews leaving religion, a growing number of Jews without an affiliation, and many Jews no longer identifying as Jewish, which have been the gloomy talking points in Jewish circles ever since the Pew study of American-Jews was released in 2013.

Mistakes can serve as obstacles that disparage and devitalize us; they can also serve as powerful, invigorating, and eye-opening experiences. So I decided to make the most of this horrible mistake.

I spent many hours looking into the subject of inclusion and the power of greeting and had since learned that the power of inclusion, welcoming, and increased connectivity are not only socially appreciated—but scientifically necessary.

In a study published in Psychological Science, lead author Dr. Eric Wesselman, a psychology professor at Purdue University, points out that:” simple eye contact is sufficient to convey inclusion. In contrast, withholding eye contact can signal exclusion…Diary data suggest that people feel ostracized even when strangers fail to give them eye contact. Experimental data confirm that eye contact signals social inclusion, and lack of eye contact signals ostracism. Wesselman went on to experiment the matter and found that people who were “looked through” as if they were thin air–even in busy and crowded areas– felt more disconnected than those who were looked at.

It is safe to say though, that we all know that others appreciate being acknowledged, smiled at, and welcomed. So why don’t we do it as often as we should? A 2005 study published in the Journal of Personality and Social Psychology shows that the main reason we fail to engage with others as often as we would like to is because of our fear of rejection and that others will not be interested in engaging with us. We believe that others lack interest and for that reason fail to engage them. True, some people probably do lack interest and want to be left alone– most people don’t.

I went on to experiment on this in my own armature way. I started saying hello to people I had never met, inviting them for a Shabbat meal, or just having a small chat. No surprises here. Most people were really moved, appreciative, and receptive to those gestures.

Amy Rees Anderson,points out in her Forbes article “Make Eye Contact, Smile and Say Hello,” how we have all been in a situation social situation where nobody knew us. “Then some superhero — a stranger —comes up and smiles, puts out their hand and says “hello.” And just like that, the awkwardness is over. ”

This year, let’s make an effort to be another person’s superhero.

As Jews, we have now been “traveling” together for more than three thousand years. We have faced our spiritual and physical utter obliteration time and again, and yet we survived. At times of distress and persecution we stand united and the strength we find in turning to each other helped us survive. However, this cannot be what brings us together. As Lord Jonathan Sacks, former Chief Rabbi of the United Kingdom points out ““If unity is to be a value it cannot be one that is sustained by the hostility of others alone.”

Rosh Hashana and Yom Kippur are great opportunities to stand up to our shared historical experience, the undeniable bond of the present, and create a bright destiny for Jewish future. Let us reach out to each other with love, friendship, and kindness. We owe it to ourselves, we owe it to each other, we owe it to our history. Most importantly, we owe it to our future.

Shana Tova.

 

Published in the Jewish Journal, October 5th, 2016

Kiddush Hayom and Yom HaKippurim by Rabbi Dr. Chaim Schertz

 

Is there a requirement for Jews to sanctify Yom HaKippurim through generic words or a recitation of a specific formula prior to the onset of Yom Hakippurim?  This question refers to whether there is an obligation upon all Jews to sanctify Yom HakIppurim, not the exceptional cases of those who are at mortal risk and are required to eat on the day of Yom Kippurim. To understand this question, we must first analyze the commandment which applies to Yom HaShabbat, the Sabbath day.

In the Mishneh Torah the Rambam states:

It is a positive commandment of the Torah to sanctify the Sabbath with words for it states in the Torah, “remember the Sabbath day to sanctify it” (i.e. to make it holy).  Shemot 20:8  And one has to remember it at its entrance and at its exit.  Laws of the Sabbath, 29:1.

The Rambam continues further on:

Just as we sanctify the Sabbath on its eve, and establish its separation (Havdala) at the conclusion of the day, in the same manner we sanctify the holidays on their eve and declare their separation at their conclusion, and at the conclusion of Yom HaKippurim.  For all of them are the Sabbaths of God.  Laws of Sabbath, 29:18.

There appears to be an ambiguity about the nature of Yom HaKippurim. Does Yom HaKippurim only entail the requirement of Havdala, but not Kiddush? If that is so, how could there be one without the other?  When it comes to sacred time, the Rambam himself stated above that a boundary must be established at the beginning and at the end of the day.  We must also remember that according to Torah law, that boundary is established through words alone.  It is the Rabbis who require using wine or bread in order to make Kiddush (consecration) and even other liquids for making Havdala. Thus, the Torah requirement would not violate the fast of Yom HaKippurim.

What is more compelling is that even within the Rabbinic setting of making Kiddush over wine, the Rambam states: “One should make Kiddush over the cup (of wine) on the eve of the Sabbath when it is still during the daytime even though the Sabbath had not yet begun.” Laws of Sabbath, 29:11  This is what the Rambam stated above in law 29:1 as the entrance of the Sabbath, which is before the Sabbath has begun.

If this is the case even when using wine, then it certainly cannot violate Yom HaKippurim by only using words at the time that Yom HaKippurim did not even begin yet. Finally, the Sabbath and Yom Hakippurim are inherently linked together, so what occurs on one should occur on the other.  Yom HaKippurim is called Shabbat Shabbaton or the Great Sabbath. Vayikra 16:31.  All aspects of Yom HaKippurim are ultimately derived from the laws of the Sabbath. See Vayikra 16:29. The Talmud states:

Just like the principle of not working on the Sabbath is one of refraining from work and doing nothing, so is the principle of affliction of the soul (on Yom Kippur) one of holding back and doing nothing . . .Just as with the prohibition of work there is no distinction based upon circumstance (i.e. location) so also the principle of affliction of the soul, should not be based upon the distinction of location. (whether based upon the location is hot or cold) . . .affliction of the soul is a matter which automatically leads to the loss of life and that is only refraining from eating and drinking. Yoma 74b.

The Talmud ultimately concludes: “There is no distinction between the Sabbath and Yom HaKippurim except that if one violated the Sabbath with premeditation his punishment is death through the earthly court, while premeditated violation of the other (Yom HaKippurim) is death through the heavenly court (Karet).” Megillah 7b. See Also Mishneh Torah, Shvitat Asor, 1:1, 1:4.

In light of all of the above, why should there be no concept of Kiddush HaYom  on Yom HaKippurim?  The answer is that in truth there is such a concept and this concept is expressed by the Bircat Hazeman (Blessing on the Time) (Shehecheyanu) that is said on Yom Hakippurim prior to the evening service. That benediction is said when it is still daytime.  It fulfills the underlying principle of Kiddush Hayom which is an act of acceptance of the Shabbat and all the other holidays.  In the absence of the normal Kiddush, Bircat Hazeman assumes that role.  This is indicated by the following Talmudic analysis:

The following question is posed by Rabba.  “Should one say the Bircat Hazeman on Rosh Hashanah and Yom Kippur?  Should I say that since these days occur only once from year to year the blessing should be said, or because these are not called festivals it should not be said?”Eruvin 40b.

The Talmud proceeds to eliminate various possibilities which deal with this question. It eventually concludes that in any event, this benediction should be said over a cup of wine.  The Talmud concedes that this may apply to Rosh Hashanah, but how could it apply to Yom HaKippurim?

“How could that occur on Yom HaKippurim? If one makes the benediction and drinks the cup, once he has made the benediction over the time( Zeman), he has accepted upon himself Yom HaKippurim and thus has forbidden himself to drink!” Eruvin 40b.  The Talmud offers several suggestions of how to solve this problem, but ultimately discounts them and finally concludes that one does say Bircat Hazeman prior to Yom HaKippurim, but without the use of wine. See Ibid, also Mishneh Torah, Laws of Shabbat 29:23.

The purpose of Kiddush HaYom is to allow a Jew to establish or to create sacred time in partnership with God in God’s creation. That is established primarily through Kiddush. Bircat Hazeman is thus an extension or a portion of that Kiddush HaYom. According to the Rabbis, it is normally said in conjunction with wine. But when wine is not available (or any bread) it may be said as an independent blessing as it is on Yom Hakippurim. To give it its intended meaning of creating sacred time it must be said prior to Yom Hakippurim. This is the role and power given to man to establish sacred time. The blessing of Shehecheyanu is thus said at the end of the Kol Nidre service, but it has nothing to do with Kol Nidre. It must be said prior to Yom Hakippurim when it is still day and when the act of sanctification is still in human hands.  By helping to create Yom HaKippurim, we help establish the basis for own Kappara.