Siman 30

The time for donning them in the morning is from when one can see his fellow at a distance of four amot and recognize him. For regarding tefillin it is written: "And all the peoples of the earth shall see that the name of Hashem...", and therefore it is dependent upon seeing. And they said in the Yerushalmi, first chapter of Berakhot, that this fellow must be one whom he recognizes slightly. For if he recognizes him well—would he not recognize him even from a distance? And this is what the Tur and the Shulchan Aruch wrote: his fellow with whom he is slightly familiar..., see there.

In Menachot (36b) it was taught: "And you shall keep this ordinance in its season from days to days." "Days" – and not nights; "from days" – and not all days, excluding Sabbaths and Festivals; these are the words of Rabbi Yosei HaGelili. Rabbi Akiva says: This ordinance was stated only regarding the matter of Pesach alone. And in another baraita it was taught: Rabbi Akiva says: Could it be that a person should don tefillin on Sabbaths and Festivals? The verse teaches: "And it shall be for a sign..." – those that require a sign, excluding Sabbaths and Festivals which are themselves a sign. And Rabbi Yochanan said there: Anyone who dons tefillin after sunset violates a negative commandment, and this is according to Rabbi Yosei HaGelili. And they said there that even according to Rabbi Yosei HaGelili, if his intention is to guard them – it is permitted to don them at night so that they should not be lost. And we say there that Rav Ashi holds like Rabbi Akiva that night is a time for tefillin. However, we do not instruct accordingly, for perhaps he will sleep in them and come to pass wind. Therefore, according to rabbinic law, one should not don them at night.

And behold, the Rambam in chapter four, law 10, ruled like Rabbi Yosei HaGelili, as he wrote: The time for donning the tfilin is by day and not by night, as it is said: "From days to days." This statute is the commandment of tfilin. And similarly, Shabbatot and Yamim Tovim are not a time for tfilin, as it is said: "And it shall be for a sign," and Shabbatot and Yamim Tovim are themselves a sign… And anyone who dons tfilin ab initio after the sun sets violates a negative commandment, as it is said: "And you shall keep…". Thus far his words. And even though he ruled like Rabbi Yosei HaGelili, nevertheless regarding Shabbatot and Yamim Tovim he cited the verse of Rabbi Akiva from "for a sign." And it appears that he holds like that which the Tosafot wrote in Eruvin (96a), that Rabbi Yosei HaGelili himself relies upon the verse of Rabbi Akiva, see there. And their reasoning is clear: for if not so, from where do we know to exclude "from days" and not all days for Shabbat and Yamim Tovim (Maharsha)? Perhaps other days? Rather, certainly he relies on the verse of "for a sign." And even though it seemingly implies that also regarding Shabbat and Yom Tov there is a practical difference between Rabbi Yosei HaGelili and Rabbi Akiva—for according to Rabbi Yosei HaGelili one violates a negative commandment since it comes from "and you shall keep" just like at night; and according to Rabbi Akiva one simply does not need to don them on Shabbat and Yom Tov, but does not violate a negative commandment (and so wrote the Sha'agat Aryeh, siman 41)—the Rambam did not understand it so. And a proof for this is from Rabbi Yochanan, for he holds like Rabbi Yosei HaGelili, yet why did he not say "anyone who dons tfilin at night or on Shabbat and Yom Tov violates a negative commandment"? Rather, certainly on Shabbat and Yom Tov, even according to Rabbi Yosei HaGelili, one does not violate a negative commandment, and the reason is because the primary verse of "and you shall keep" comes for the night. But for Shabbat and Yom Tov, the primary verse is from "for a sign," as I have written. And therefore, the Rambam was not concerned to bring for Shabbat and Yom Tov the verse of "and you shall keep."

But our teachers the Tosafists, and the Rif, and the Rosh, and the Semag ruled like Rabbi Akiva, because Rav Ashi holds accordingly. And night, according to the Torah, is a time for tefillin, and only by rabbinic decree did they forbid donning them ab initio at night, lest one sleep in them. And so they ruled in the Tur and Shulchan Aruch. This is the wording of our teacher, the Beit Yosef, in section 2: It is forbidden to don tefillin at night, lest one forget them and sleep in them. And if he donned them before the sun set and it grew dark upon him, even if they are upon him all night – it is permitted. But we do not instruct thus (and in public he must remove them). And if he did not remove his tefillin after the sun set because he had no place to guard them, and they were found upon him in order to guard them – it is permitted and we instruct thus. Thus far his words. And he must say that he is doing so in order to guard them (Magen Avraham). And the Rambam also wrote these laws. Now, if it is in order to guard them, it is explicit in the Gemara that it is permitted, even if night is not a time for tefillin as I have written. But the first law, that if it grew dark upon him – it is permitted but we do not instruct thus, why did he write it? For in the Gemara this was only according to the one who holds that night is a time for tefillin. And it appears clearly that the Rambam explains the Gemara with a different explanation, in a manner that this is even according to the one who says night is not a time for tefillin. (And this is the explanation: We sat before Rav Ashi and it grew dark and he donned tefillin, meaning: he did not remove them… – it is the halacha but we do not instruct thus. Meaning: it is the halacha that from the Torah it is forbidden to don them at night, but to remove them there is no Torah obligation, yet we do not instruct thus if it is not to guard them. And according to this, the reasoning of the Rambam is revealed, for he ruled like Rabbi Yosei HaGelili because he explains that Rav Ashi also holds like Rabbi Yosei HaGelili. And according to this, it can be said that the Rif also holds accordingly, for he wrote: And the halacha is like Rav Ashi. And according to the Rambam's explanation, it does not contradict the words of Rabbi Yochanan. And according to this, that which the Rif also brought the words of Rabbi Yochanan works out well. And the great Acharonim labored much over their words, and in my humble opinion it is clear that their reasoning is such. Examine carefully and you will find it simple.)

If one desired to set out on a journey early in the morning – he dons them without a blessing, even according to those who hold that night is a time for tefillin according to the Torah. Nevertheless, since the Sages forbade it, even though they permitted it for setting out on a journey on the grounds that in this case there is no concern lest he sleep in them, for since he is traveling on the road how would he sleep, nonetheless a blessing is impossible, for how can he say "and commanded us"? Did the Sages not forbid them at night? Therefore, he should don them without a blessing, and when their time arrives, he shall touch them and recite the blessing. And know that they only permitted this for one who goes on foot. But when he sits in a wagon, they did not permit him to don them before the light of day, for one who sits in a wagon is subject to the concern of sleep just as in his home (Taz and Magen Avraham subsection 5). And similarly, one who rides on a horse or on a donkey – it is forbidden for him to don them before the light of day (ibid.). And even though it would seemingly appear that a rider cannot sleep for he would fall, nevertheless, those accustomed to riding are able to sleep when the horse or the donkey walks not at a run, and therefore it is forbidden. And there is one who permits it for a rider (Eliyah Rabbah), and so it appears primary.

And behold, the Tur and Shulchan Aruch wrote this law, and the Rambam did not write it. And they wondered about him, for this is a baraita at the end of the chapter "HaKometz" (36a). And they wrote that he holds that this follows the one who says night is a time for tefillin (Beit Yosef). And I wonder about them: on the contrary, for in the baraita it is explicit like the Rambam. This is the wording of the baraita: If one was rising early to set out on a journey, and was afraid lest they be lost – he dons them, and when the time arrives – he touches them..., see there – behold, they only permitted it when he is afraid lest they be lost and it is in order to guard them, and this the Rambam already wrote. And on the contrary, I am surprised at the Tur and Shulchan Aruch, why did they omit this of "afraid lest they be lost," and from where do we know that even without this concern it is permitted? And it must be said that they hold that that which was taught "and was afraid lest they be lost" – this is according to the one who says night is not a time for tefillin. And since they ruled that night is a time for tefillin – it is permitted even without this concern. But from where do we know to say so? And in any event, the words of the Rambam are necessitated by the baraita itself. And perhaps the Tur and Shulchan Aruch did not have the version in the baraita "and was afraid lest they be lost." And I saw that the Rif and the Rosh (siman 16) indeed their version was so, see there. But the Mordechai brought it, and his version was "and was afraid lest they be lost," and such was the version of the Rambam. And according to this, all the words of our teachers fit well.

If one was coming on the way with tefillin on his head, and the sun set upon him—he does not remove them. He should only place his hand over the shel rosh until he reaches his house, so that one who sees him will not think that he donned them at night. However, if he was sitting in his house or in the beit midrash—he does not need to cover it with his hand, for those who are there saw that he donned them while it was still day. But on the eve of Shabbat at twilight, when he was sitting in the beit midrash and cannot leave them there due to fear of theft or loss, and also cannot take them and carry them in his hand because of Shabbat—he should go to his house and place his hand over them until he reaches his house. And if there is a house closer than his house where they would be protected—he is obligated to remove them and leave them there.

Our teacher, the Beit Yosef, wrote: There is one who says that if one prayed the Arvit prayer while it was still day, before he had donned tefillin – he should not don them afterward. Thus far his words. Since he has already established it as night, it would be two leniencies that contradict one another. Therefore, if he himself did not pray, even though the congregation prayed – it is permitted to don tefillin. And there is one who says that if he thought it was day and recited the blessing, and in truth it was night – he is not required to recite the blessing during the day, since we hold like the majority of the poskim that night is a time for tefillin (Birkei Yosef). And know that the Kabbalists warned not to have tefillin upon him at night, and also that he should not pray Arvit in them. And perhaps they hold like the Rambam, that from the Torah it is not a time for tefillin.