Siman 108

The Rambam wrote in the third chapter, law 8: Anyone for whom the time of prayer passed and he did not pray intentionally—he has no remedy, and he does not compensate. However, if it was unintentional, or if he was under duress or preoccupied—he compensates for that prayer during the time of the prayer adjacent to it, and he precedes with the prayer of its time and afterwards prays the compensation. How so? If he erred and did not pray Shacharit, and midday passed—he prays Mincha twice, the first is the Mincha prayer and the second is the compensation for Shacharit. If he erred and did not pray Mincha until the sun set—he prays Arvit twice, the first is Arvit and the second is the compensation for Mincha. If he erred and did not pray Arvit until the morning star rose—he prays Shacharit twice, the first is Shacharit and the second is the compensation for Arvit. If he erred and did not pray neither this prayer nor the prayer adjacent to it—he only compensates for the final one alone. How so? If he erred and did not pray neither Shacharit nor Mincha—he prays Arvit twice, the first is Arvit and the second is the compensation for Mincha. But for Shacharit there is no compensation, as its time has already passed. And so too with the rest of the prayers. Thus far his words (and all of this is at the beginning of the fourth chapter).

And behold, regarding that which he wrote that if he acted intentionally he has no remedy, the Rosh and the Rashba wrote there in the name of the Gaon, and this is his wording: If he nullified it intentionally—that which is crooked cannot be made straight. And he has nothing but the reward of a prayer for mercy, as it is a mere voluntary act. But the reward of a mitzvah he does not have. And they wrote that from the words of the Gaon it is proven that if he wishes to return and pray two prayers in the next prayer service, the first for his obligation and the second as a compensation for that which he nullified—he is permitted, and he has the reward of a prayer for mercy which is voluntary, see there. And so ruled the Tur and the Shulchan Aruch in section 7. And the difference between this and one who erred is that in the case of one who erred, he is obligated in compensation and has the reward of a mitzvah, whereas in the case of one who acted intentionally, it is only voluntary. And for this reason the Gemara there called it "that which is crooked cannot be made straight," meaning: that the mitzvah is lost from him. And they further wrote that he does not need to innovate anything in it. Even though it is a mere voluntary act, nevertheless, it is not similar to a voluntary prayer which requires innovation as I wrote in the previous siman. For since here he prays it in the prayer adjacent to it, and in a case of error in this manner it would be appropriate to pray without innovation, therefore even in a case of intentional action it is similar to an error in this specific detail (Beit Yosef and Taz, subsection 5).

But their words are perplexing. For behold, the Rambam, the Tur, and the Shulchan Aruch ruled that tashlumin is only effective for the immediately adjacent prayer. This is the wording of the Tur and Shulchan Aruch, section 4: There is no tashlumin except for the immediately adjacent prayer alone. For if one erred and did not pray Shacharit or Mincha—he prays Maariv twice, the latter for the tashlumin of Mincha. But Shacharit has no tashlumin, and so too with the other prayers. Thus far their words. And even though the Bahag wrote that tashlumin is effective for two prayers, as the Tur wrote in his name, nevertheless they decided the halacha not in accordance with him. However, in any event, there are those who disagree with this law. And regarding all this, our teacher, the Beit Yosef, wrote in section 5 that even though there is no tashlumin except for the prayer immediately adjacent to that prayer, and other prayers that he missed have no tashlumin, nevertheless if he desired to pray it as a nedavah and innovate something in it—he has the permission to do so, and it is proper to do so. Thus far his words. And now, it is an a fortiori argument: for if in a case of unintentional error, where according to the Bahag tashlumin is effective, he nonetheless ruled that an innovation is required—all the more so in a case of intentional omission that an innovation is required. And they have already raised this difficulty against him (Bach and the Gra, subsection 8).

And it appears to me regarding the opinion of our teacher, the Beit Yosef, when we examine closely: from where did the Gaon derive that in a case of intentional omission one may pray an optional prayer? Indeed, there is one who raised this difficulty against him (the Bach in siman 234). It appears that the Gaon inferred this from the language of the Shas there, which says: "That which is crooked cannot be made straight" – this refers to one who neglected the Recitation of Shema of the morning or the Recitation of Shema of the evening, or the prayer..., see there. And it compares prayer to the Recitation of Shema, and regarding the Recitation of Shema it is obvious that one may recite an optional recitation, for it is no less than one who reads from the Torah. If so, here too regarding prayer. And since it is explicit in the Gemara that one may pray an optional prayer, if so, it is not similar to a voluntary prayer and does not require a novelty. This is not the case regarding a prayer that is not adjacent, which was not mentioned at all in the Gemara according to his approach, and is nothing other than a voluntary prayer; therefore, it requires a novelty.

And what is called "anus"? Not necessarily a complete duress. Rather, even if he did not pray while he still had time to pray because he thought that time would still remain for him after that business with which he was occupied, and in the meantime the hour passed. And so too, one who was preoccupied with the needs of his property so that it should not come to a loss, and through this he missed praying, such as if he was with a master to claim what was due to him and he was drawn out with him in words until the time passed, and he thought that the time would not yet pass; or that he was occupied with his trade to set the goods in their places and thought that there would remain for him time to pray after he finished. And more than this: even if he sat idle and the time for prayer arrived, and he was able to pray and was lazy, and said "there is still time to pray" and afterward it was forgotten from him that he must pray—it is also called "anus," for forgetfulness is an anus (Magen Avraham, subsection 11). And so too, when he sat to drink with the imagination that he would not become intoxicated, and he became intoxicated and the time passed—it is an anus. The general rule of the matter: aside from a complete intentional act, it is included in the category of shogeg or anus or mistaken, and he compensates in the adjacent prayer as I have written.

Our teacher, the Rema, wrote in section 8: However, initially one should not let the time for prayer pass because of financial loss. Thus far his words. Ostensibly, it appears his intention is that even for a definite loss, one should not let the time for prayer pass. But it is impossible to say so, for even regarding a positive Torah commandment whose time is passing, such as an etrog on Sukkot which one is obligated to spend money upon, nevertheless one is not obligated to squander much money (Tosafot Bava Kamma 9b), and as will be explained in siman 656. And our teacher, the Beit Yosef, there in his great book, wondered at the one who said that one must spend a tenth of his possessions on this, see there. All the more so regarding prayer, which even according to the opinion of the Rambam is only once a day from the Torah, as I wrote at the beginning of siman 89, that one is not obligated to lose great wealth for its sake. And especially since it has a tashlumin in the adjacent prayer. And granted that this is a measure of piety, and he shall be called "holy," but according to the essential law, it is impossible to say so.

Therefore, it appears in my humble opinion clear that his intention was regarding a concern of monetary loss, and not a definite loss. And so it is explained from the source of the law in the Terumat HaDeshen (siman 5), regarding one who went to the officials to assist him in collecting his debts, and needed to speak with them at length, see there. And regarding this he wrote that ab initio one should not cancel, and he should not be concerned for monetary loss, for even regarding Torah, the time for Torah is separate and the time for prayer is separate. And we learned in a Mishnah: Calculate the reward of a mitzvah against its loss… Thus far his words. And this refers to a concern of monetary loss, and not a definite loss (so it appears according to my humble opinion).

It is known that in ancient times they would pray Arvit while it was still broad daylight. And it happened that one had not yet prayed Mincha, and he came to the beit knesset close to Arvit, and he went down before the ark and prayed Arvit. And seemingly, he is like one who intentionally did not pray Mincha. Nevertheless, it is not so, for the day has not yet passed and it is still the time for Mincha. And even though since he treated it as night it is impossible for him to don tefillin, as I wrote in siman 30 that he should not don tefillin after Maariv even though it is still day, because he has already treated it as night and it would be a contradiction—it is not comparable, for tefillin does not apply at night at all and it is clearly a contradiction. But the Mincha prayer exists at night as a tashlumin, and therefore this is not a contradiction. Therefore, this is not similar to one who acts intentionally (Magen Avraham subsection 10, and this is his intention). And it is simple that if he was of the opinion that it is permitted to pray Arvit before Mincha, it is certainly an error, and therefore he should pray one more time for the tashlumin of Mincha. And if he said "Ya'aleh V'Yavo" in Arvit because tomorrow is Rosh Chodesh—he should say it also in the second prayer for tashlumin (ibid.) even though he prays it while it is still day, for he has already treated it as night.

And regarding that which he wrote, that one prays the first as an obligation and the second for tashlumin, our teacher, the Beit Yosef, wrote in section 1 that if he reversed them—he has not fulfilled the obligation of the prayer that is tashlumin, and he must return and pray it again. And such is the law in every place where one must pray a prayer for tashlumin. Thus far his words. And there is one who says the reason is because the obligation is frequent, and takes precedence over tashlumin which is not frequent (Levush). But it is impossible to say so, for frequency is not a requirement that invalidates (Ma'adanei Yom Tov) as is proven in Menachot (49a). And there is one who says they established it as an enactment, so that one should not come to pray outside its time ab initio. Therefore they established that it is a requirement that invalidates to pray the obligation first, and automatically he will not come to this negligence (ibid.). And this too is not understood, for where is this decree found? Furthermore: this would be fine in a case of intentionality, but if he did this inadvertently, this decree is not applicable. And our teacher, the Beit Yosef, did not distinguish in this (and so wrote the Pri Megadim). Rather, certainly a prayer of tashlumin does not count before the prayer of obligation. And it seems to me the reason: since prayer is like standing before the King, one is necessarily required to pay his present obligation immediately, and if not, he is like one who rebels against the kingdom. And afterwards he shall request concerning that which he did not stand before Him, may He be blessed, previously. And how can he request forgiveness for the past, while rebelling now as he stands before Him? (And see Eliyah Rabbah who also gave a reason. And that which appears to my humble opinion, I have written.)

Our teacher, the Rema, in his book Darkhei Moshe, wrote that only if he intended the first for the purpose of compensation, and the second for his obligation—he has not fulfilled his obligation, and he must pray the compensation afterward. And there is one who says that intention in the heart is not a hindrance unless there is an expression of intent by mouth. For example, if he prayed the first without "Ashrei" and the second with "Ashrei," which proves that it is for the purpose of Mincha. Or perhaps we require an expression of intent within the prayer itself, as will be explained regarding the matter of Havdalah on Saturday night (Magen Avraham, subsection 2). And to me, the primary view seems to be like the words of our teacher, the Rema, for if not so, you would not find this law except in a remote reality, such as on Saturday night and the like, and it does not appear so from the poskim. And in truth, according to the reason we explained, that he is like one standing before the King—it works out well, for the Holy One, Blessed be He, knows thoughts, and automatically when he does not intend for the purpose of his obligation—it is as if he rebels against the Kingship according to the reasoning we wrote. (And what the Magen Avraham wrote as a proof from the Terumat HaDeshen, that if he recited Havdalah in both of them he has fulfilled his obligation even though he intended the opposite—it is no proof at all. For there it appears explicitly so, that he intended the first for the purpose of the obligation since he recited Havdalah in it, and the error was in the second, that he intended in it also for the purpose of the obligation, as is clear from his wording, see there carefully. For if not so, why did the Terumat HaDeshen not write this law regarding two identical prayers on a weekday? Examine and you will find it simple.)

When one did not pray Mincha, and prays Maariv twice—he should pray Maariv in his usual manner: Kiryat Shema and its blessings and Shemoneh Esreh, and afterwards he should wait the time it takes to walk four amot and pray for the Tashlumin of Mincha. Our teacher, the Rema, wrote in section 2 that he should say "Ashrei" before the second one. However, there are those who warned not to say "Ashrei" during Maariv, and even after Mincha the mind of the sages of the Kabbalists is not at ease with saying "Ashrei." And so it is explained in the Zohar. And as for the fact that on Yom Kippur we say "Ashrei" during "Neilah," it is because Yom Kippur is a time of favor the entire day (Magen Avraham, subsection 5). Therefore, he should say a different psalm. And this is not a hindrance at all, as I have written that only when he waits four amot can he pray. And it is simple that if he first prayed Shemoneh Esreh, and afterwards prayed Kiryat Shema and its blessings and Shemoneh Esreh—behold, he has revealed his intent that he preceded the Tashlumin to the obligatory prayer, and he must pray another for the Tashlumin. And it appears to me that he is not believed to say that he intended the first for the obligation, for if it is according to his words, why did he say Kiryat Shema and its blessings over the second?

And when one did not pray Arvit, and prays Shacharit twice—it is simple that after the Shemoneh Esrei, after Tachanun, he should pray the second for Tashlumin. And if he wishes, he may pray after "Ashrei," "Uva LeTziyon." And if he prayed Shemoneh Esrei before the prayer service, and afterward prayed the entire order of the prayer service with the Shemoneh Esrei—behold, he has revealed his intent that he prayed the Tashlumin first, and he must return and pray, as I have written. And when one did not pray Shacharit, and prays Mincha twice—he should say "Ashrei" before the first, and afterward say Tachanun or another psalm, or wait four amot. And it is better to say some psalm, in order to stand in prayer from amidst words of Torah. And it appears to me that regarding Mincha, if he prayed the first without "Ashrei," and the second with "Ashrei"—there is no necessity to say that he intended the first for Tashlumin. And if he says that he intended it for the obligation—he is believed, for from "Ashrei" there is not such a great necessity. And it is not similar to what I wrote previously.

It has already been explained that there is no tashlumin except in the adjacent prayer. Our teacher, the Beit Yosef, wrote in section 3: This matter of completing the prayer that he missed—specifically during a time of prayer. But at a time that is not a time of prayer—no. Thus far his words. And I do not know when it is "not a time of prayer," for until midday he can pray Shacharit, and from midday until night is the time of Mincha, and the entire night is the time of Arvit. And it is a forced explanation to say that his intention is regarding the half-hour from midday during which one may not yet pray Mincha. In truth, the source of this law is from the Rashba, as he wrote in his great book. And he holds according to the opinion of the Ba'al HaHalachot Gedolot, that tashlumin is effective even for many prayers. Regarding this he says that these prayers—he should pray them during a time of prayer, meaning: that he should pray the obligatory one and afterward complete them, see there. And as is clear from his wording where he wrote: However, specifically during a time of prayer, for since it is a time of prayer and he is engaged in his prayer—he returns and completes what he erred in his prayers. For if not so, what is "he prays two" that it says? Let it say: He erred and did not pray Shacharit before midday—he returns and prays after midday. He erred and did not pray Mincha—he prays all night... Thus far his words. If so, our teacher, the Beit Yosef, who already ruled that one must pray the obligatory one first—this entire law is superfluous. And it requires further study.

It appears that if one remembered after his obligatory prayer that he forgot the previous prayer, he may pray a second prayer for tashlumin. According to this, one must wonder when he prayed Shacharit, and after a third of the day remembered that he did not pray Arvit, if he may pray it, for is it not the time of the Shacharit prayer? And if we say so, we can settle the words of our teacher, the Beit Yosef, simply, for this is his intent in what he wrote, "specifically during the time of prayer...", meaning: that tashlumin for Arvit is only effective until a third of the day. But it does not seem so from all the poskim. And explicitly it appears that regarding this matter, until midday is considered the time of the Shacharit prayer. And in practice, this law requires further study. I have seen great ones for whom it was obvious that after a third of the day there is no completion for the Arvit prayer (Pri Megadim and Derech HaChaim). And there is one who wishes to say that even the completion of the Mincha prayer is only until midnight. And all these matters are wondrous in my eyes, for it has already been explained at the beginning of siman 89 that even though we establish like Rabbi Yehuda that the time of prayer is until four hours, nevertheless, since according to the Rabbanan it is until midday ab initio, therefore even according to Rabbi Yehuda, even if he intentionally did not pray until four hours, he should nevertheless pray until midday. And we explained this there in section 13, see there. And if so, for a completion prayer it should be effective until midday. And all the more so regarding the Arvit prayer, whose primary time is the entire night, except that in order to distance a person from transgression it is ab initio until midnight, as we learned at the beginning of Berakhot and as will be explained in siman 235. And it is an a fortiori argument for completion. (And the words of the HaGaon Rav Zalman in his Shulchan Aruch section 7 are more wondrous, as he understood the words of the Beit Yosef that if he did not pray immediately after the obligatory prayer, it is forbidden for him to pray the tashlumin, see there. And from where do we have this? For the source of the law is from the Rashba, and he wrote this regarding praying the obligation first as I wrote. And the Ateret Zekenim understood that his intent was regarding the half hour after midday, see there. And this too is wondrous as I wrote. And in my humble opinion, the law appears clear as I wrote. Examine it and you will find it easy.)

There is no completion for the musaf prayer if the day passed and one did not pray. For how can he recite the sacrifices once the time for musaf has already passed? And once its time has passed, its sacrifice is nullified. However, the other prayers are supplications (Magen Avraham, subsection 9). And even though when he prays at night for completion he will pray the weekday prayer, as will be explained, and will not mention the sacrifices at all, nevertheless, it is not applicable to the completion of a sacrifice whose time has already passed (Taz, subsection 4). And it appears that even the musaf of Rosh Hashanah, which contains many supplications—Malchuyot, Zichronot, and Shofrot—nevertheless, it is not subject to completion, for the essence of musaf is for the sacrifices. Furthermore, the essences of these prayers are only relevant to Rosh Hashanah, and they are similar to a musaf sacrifice whose time has passed and its sacrifice is nullified.

The shaliach tzibbur can fulfill the obligation of a makeup prayer through the repetition of the shaliach tzibbur. For example, if he did not pray Arvit, and in Shacharit he prays in a whisper and aloud—he has fulfilled the obligation of the makeup prayer. Not only this, but even another person who is obligated in a makeup prayer, and hears from the shaliach tzibbur from the beginning until the end—he fulfills it through this; even though the shaliach tzibbur intends it for the sake of Shacharit and he intends it for the makeup prayer, nevertheless, we have no concern with this (see Magen Avraham subsection 1, and in Sha'arei Teshuva subsection 1 in the name of Birkei Yosef). And know that just as there is no makeup prayer for the Musaf prayer, so too the Musaf prayer is not effective for a makeup prayer. And one who forgot to pray Shacharit and prayed Musaf—he should pray the Shacharit after the Musaf if it is still before midday. And one who did not pray Shacharit and Musaf, and remembered after midday—he should pray Mincha and afterwards Musaf, as both are obligations of the time, and afterwards he should pray Shacharit as a makeup prayer. And if he preceded Musaf to Mincha—he has fulfilled the obligation (ibid.). But if he preceded Shacharit to Mincha—he has not fulfilled the obligation, because he preceded the makeup prayer before the obligatory prayer. However, if he preceded the Shacharit to Musaf, it appears to me that he has fulfilled the obligation even though Musaf is an obligation, because its matter is not related at all to Shacharit.

Sometimes the completion prayer is a different prayer than the prayer for which he is completing, and it is effective. How so? Thus our sages, of blessed memory, said (beginning of the fourth chapter): If one erred and did not pray mincha on the eve of Shabbat—he prays two of Shabbat on Shabbat, and the first is for the obligation and the second is for completion. And the reason: because this is how the essence of the halacha was stated, that for this prayer he is obligated in the next prayer time for two prayers belonging to the next time. And automatically, since the sanctity of Shabbat has taken effect upon him—he is obligated in all his prayers to mention that of Shabbat. However, in this it is possible that if he did not mention that of Shabbat in the second—he has fulfilled the obligation, since ultimately it is for the completion of a weekday prayer (Magen Avraham, subsection 12). And there are those who disagree on this (Taz). And the primary view is like the first opinion (Eliyah Rabbah and Knesset HaGedolah).

And so too, if one did not pray Mincha on the eve of Rosh Chodesh—he prays Maariv twice, and mentions "Ya'aleh V'Yavo" in both of them. And if he did not mention it in both of them—he has fulfilled his obligation, for in Maariv of Rosh Chodesh one does not need to return and pray when he forgot "Ya'aleh V'Yavo." And so too if he mentioned it in the first but not in the second. But if he mentioned it in the second but not in the first—he must return and pray, because in this he revealed his intent that he prayed the first for Tashlumin, and he prioritized it over the obligatory prayer and did not fulfill his obligation. And there is a doubt regarding one who did not pray Maariv on Rosh Chodesh, and prayed Shacharit twice and did not mention "Ya'aleh V'Yavo" in the second. Do we say that since in Maariv if he did not say "Ya'aleh V'Yavo" we do not make him return, here too we do not make him return? Or perhaps since the reason we do not make him return in Maariv is because we do not sanctify the month at night, and now it is day and he is obligated to return and pray. And such is the primary ruling (Magen Avraham ibid.). And there are those who disagree on these laws and hold that Shabbat is not comparable to Rosh Chodesh (Levush). And there are also those who disagree and hold that if one did not pray Maariv on Rosh Chodesh and prayed Shacharit twice, and did not mention "Ya'aleh V'Yavo" in the second, that we do not make him return (Knesset HaGedolah). However, the primary ruling is as I have written.

One who erred and did not pray Mincha on Shabbat – he prays two [Amidah prayers] of the weekday on Saturday night, and recites Havdalah in the first and does not recite Havdalah in the second. And it is not similar to Shabbat and Rosh Chodesh, where the obligation is to mention them in all the prayers of the day, which is not the case regarding Havdalah in "Chonen HaDa'at," which is only recited once. Therefore, in the second prayer, which is for compensation, why should he mention it? However, if he mentioned it in both of them, or did not mention it in both of them – he has fulfilled his obligation. But if he did not recite Havdalah in the first and recited Havdalah in the second – the second counts for him for the sake of his obligation, and the first does not count for him. For since he did not recite Havdalah in the first and recited Havdalah in the second – he has revealed his intent that he preceded the compensation to the obligation. And it has been explained that this is not effective. However, if he says clearly that his intent in the first was for the sake of the obligation but that he erred and did not recite Havdalah – he is believed, and he does not need to return and pray. (So it appears to me. And see Magen Avraham, subsection 14, and Taz, subsection 10. And examine closely and you will find it simple.)

Since one must pray the makeup prayer according to the formula of the obligatory prayer, even though it is not according to the formula of the prayer he is obligated to repay, if so, there is a doubt regarding the opposite case: in a situation where he will gain nothing from the makeup prayer, such as if he did not say "Ya'aleh VeYavo" on Rosh Chodesh at Mincha, and he must pray Ma'ariv twice without "Ya'aleh VeYavo," and if so, what will he gain, for did he not already pray without "Ya'aleh VeYavo"? Or, for example, if he erred in Mincha of Shabbat and prayed the eighteen blessings of a weekday, where the law is that he must return and pray the Shabbat prayer, and he remembered on Saturday night and must pray two weekday prayers. What will he gain, for has he not already prayed this prayer? Therefore, there are some of our teachers who hold that in such a case he does not need to return and pray (Tosafot in the name of the Ri at the beginning of the fourth chapter). But there are some of our teachers who ruled that he must return and pray, because that which he prayed is as if it were nothing since he did not pray according to the law, whereas when he prays this one, it is according to the law (ibid.). And so ruled the great poskim and the Tur and the Shulchan Aruch section 11, see there. And it is obvious that if he will gain in his prayer, such as if it is also Rosh Chodesh at night, or if he erred in Mincha on the first day of Yom Tov, or forgot "Tal U'Matar" or "Mashiv HaRuach," that even according to the first opinion he should return and pray. And know that even though the halacha is like the latter opinion, nevertheless they ruled that he should intend to pray it as a voluntary prayer. And there is no loss in this in order to fulfill the first opinion. But he does not need to innovate anything in it, because the primary ruling is like the latter opinion.

Our teacher, the Beit Yosef, wrote in section 12: One who errs and mentions the event of other days in the prayer when it is not its time—it is not considered an interruption. Thus far his words. Our teacher, the Rema, wrote: However, if he remembers that he erred—he stops even in the middle of the blessing. Thus far his words. Meaning: for example, if he erred and prayed on a weekday the prayer of Shabbat or of Yom Tov—he stops in the middle of the blessing. And many of the great authorities disagreed with this ruling of our teacher, the Beit Yosef, for he learned this from that which we say: if he recited havdalah in both of them—he has fulfilled his obligation. Even though he should not have mentioned havdalah in the second one, nevertheless he fulfilled his obligation—behold we see that it is not an interruption. But this is not a comparison: for there it is the time of havdalah, which is not the case when he mentions a matter that does not belong to that day—it is certainly an interruption, like one who speaks idle chatter, and he must return and pray (Taz, and Pri Chadash, and the Gra, and Knesset HaGedolah). And it is even worse than idle chatter, which is only a mere interruption, which is not the case here where he makes this day like another day. (And with this you will understand the words of the Gra. Examine carefully and you will find it easy.) And it is good that he should return and pray as a voluntary prayer. And there is no need to innovate a matter in it (the Graz), as I wrote in the previous section.