Siman 38

The Tur and the Shulchan Aruch wrote: One who is ill with an intestinal disorder is exempt from tefillin. And so the Rambam wrote in the fourth chapter: Those ill with intestinal disorders, and anyone who is unable to control his orifices except with great distress, is exempt from tefillin. See there. And this law is explicitly stated in Chullin (110a) regarding one who was brought before Rabbi Chanina. He saw that he was not wearing tefillin. He said to him: What is the reason you are not wearing tefillin? He said to him: I am ill with an intestinal disorder. And Rav Yehuda said: One who is ill with an intestinal disorder is exempt from tefillin. And even though in Ketubot (104a) we say regarding our holy teacher that he suffered from this illness and yet he wore them—our holy teacher is different, for he conducted himself with extra holiness (Tosafot ibid.).

And behold, it is certainly clear that for this reason it is impossible to exempt oneself entirely from tefillin during the time of Kriyat Shema and prayer, for during a short time one can be careful. (And so wrote the Magen Avraham, subsection 1. See there where he wrote that it is permitted, and seemingly it is an obligation.) And a clear proof for this: for behold, in the source of the law in Chullin there, it was not during the time of Kriyat Shema and prayer, since he engaged in halachic discussion with him as is explained there. Rather, because it was their way to walk in tefillin all day, they therefore asked, and he said to him that he has a bowel sickness. And if so, I have a difficulty with the Tur and Shulchan Aruch: why did they bring this law at all? For since they wrote in the previous siman that we do not walk in tefillin all day, only during the time of Kriyat Shema and prayer, if so, even without a bowel sickness we are exempt? And one cannot say that with a bowel sickness there is also a prohibition to wear them all day. It is impossible to say so, for behold, they did not write a prohibition but rather an exemption. Furthermore: for behold, our holy teacher wore them all day, as is explained in Ketubot there. And granted that one cannot learn from him as I have written, nevertheless, a prohibition is not applicable to this for one who wishes to conduct himself with extra holiness. And I have a further difficulty with the Tur and the Shulchan Aruch: if so, how could they leave the matters unspecified? They should have clarified that one with a bowel sickness is exempt all day from tefillin, except during the time of Kriyat Shema and prayer. And regarding the Rambam it is not a difficulty, as it is his way to write the wording of the Shas, and he also did not mention the law in the previous siman. But the Tur and Shulchan Aruch, who wrote the previous law—they should have explained.

And furthermore I wonder: for behold our teacher, the Beit Yosef, in his great book brought that which the Mordechai wrote, that a sick person is exempt from tefillin. And he asked: if so, why did Rava say in Chullin ibid. that one with an intestinal illness is exempt? For every sick person is exempt. And he answered: that every sick person is exempt specifically when he is in pain, and one with an intestinal illness is exempt even when he is not in pain, see there. And based on this, our teacher, the Rema, wrote in section 1 regarding this matter of one with an intestinal illness being exempt, and this is his wording: even if he does not have pain. But any other sick person, if he is in pain from his illness and his mind is not settled upon him – he is exempt. And if not – he is obligated. Thus far his words. And I do not understand at all: for what is the relevance of a sick person to an illness, for certainly a sick person who is bedridden, it is obvious that even at the time of the recitation of Shema and prayer he is exempt. And this is explicitly proven in the Yerushalmi Berakhot (chapter two, halakha 3) where it says there: Rabbi Yannai would wear them after his illness for three days, see there. And until that time he would not don them at all. And now, if one with an intestinal illness is obligated at the time of the recitation of Shema and prayer? What is the relevance of this to that, and what was his difficulty and what did he answer? And it requires further study.

Therefore, it seems to me that our teachers, the authors of the Shulchan Aruch, maintain that one with an intestinal illness is completely exempt, even during the time of the recitation of Shema and the prayer. They inferred this from the language of the Gemara, which stated plainly that one with an intestinal illness is exempt from tefillin. The reason is: since he is prone to flatulence and diarrhea, he is like one in distress who is unable to remove his distress from himself, who is exempt from tefillin as will be explained. They could not write the language of "prohibition" because of the incident involving our holy teacher. Therefore, they rightly questioned from the Mordechai, for it was simple to them that it does not speak of a severe illness where one is confined to bed and has no strength or any consciousness, for in such a case the concept of obligation and exemption is not applicable. Rather, it refers to a sick person who, if he wished to strengthen himself, could don tefillin, and nevertheless he is exempt as is explained in the Yerushalmi there. For this reason, they rightly questioned why it specified an intestinal illness, and to this they answered that one with an intestinal illness is exempt even if he is not in distress. That is to say: even if he has no distress from the actual donning of them, because this illness exempts him from the standpoint of cleanliness. But regarding any other sick person, it is simple that if he has no distress in donning them, why should he exempt himself? He is only exempt when he is in distress from donning them due to his weakness, and his mind is not settled upon him because of this, for then he is exempt. (And according to this, one with an intestinal illness is completely exempt, unlike the later authorities who did not write so. Examine carefully and you will find it simple.)

Nevertheless, it is impossible to give a general rule in this matter, for it depends on his intestinal illness, and on whether his nature is strong or weak. And it appears to me that this is what our teacher, the Beit Yosef, wrote in section 2: that one for whom it is clear that he cannot pray without flatulence—it is better that the time for prayer pass than that he pray without a clean body. And if it appears to him that he can maintain himself with a clean body during the time of Kriyat Shema—he should don tefillin between "Ahavah" and Kriyat Shema and recite the blessing. Thus far his words. And this is the matter of one with intestinal illness, and if so, it depends on his illness and his nature. However, after prayer he certainly should not don them even when he estimates for himself that he will not flatulate, for why should he enter himself into a state of doubt? (And so it is implied from the Magen Avraham, subsection 1, who wrote that it is forbidden to be stringent upon oneself, see there. And he wrote further: that if he estimates for himself that he cannot maintain himself from flatulating except for the amount of time it takes to remove the shel rosh, even so he should don both of them, see there. Because the primary concern is with the shel rosh, see there.)

Women and slaves are exempt from tefillin, because it is a positive time-bound commandment, as Shabbat and Yom Tov are exempt from tefillin. And if they wish to be stringent upon themselves – we protest against them. And it is not similar to sukkah and lulav, from which they are exempt and nevertheless recite a blessing over them. For since tefillin requires extra care regarding a clean body, as we say in Shabbat (49a): Tefillin require a clean body like Elisha the Master of Wings. And in the Yerushalmi Berachot there they said: There they say, anyone who is not like Elisha the Master of Wings – let him not don tefillin. However, men who are obligated – of necessity they must be careful with them during the time of Kriyat Shema and prayer. And therefore they do not don them all day, as I wrote in the previous siman. If so, women who are exempt, why should they enter themselves into such a great concern? And for them, during the time of Kriyat Shema and prayer is like for men all day; therefore, we do not allow them to don tefillin. And even though it was taught in Eruvin (96a) that Michal the daughter of Saul used to don tefillin, and the sages did not protest against her – one does not learn from this, for presumably they knew that she was a complete righteous woman and knew how to be careful. And so too slaves in this manner. (See Magen Avraham subsection 3 and Beit Yosef. And according to what I have written, it works out well.)

One who dons tefillin must be careful regarding thoughts of desire for a woman. And if it is impossible for him without thoughts—it is better for him not to don them. Thus ruled our teachers, the authors of the Shulchan Aruch, in section 4. And even though in Sukkah (26b) it implies that one should not forbid because of thought alone, that is in a case of uncertain concern. But when he certainly thinks—it is forbidden (Magen Avraham, subsection 4). However, from Rashi there it implies explicitly that because of thought there is no prohibition. (See there in the comment beginning "She-regilin" and in the comment beginning "Shema." Examine it and you will find it easily.) And there is one who brought from the Yerushalmi which says a body clean from evil thought (Beit Yosef in the name of Orchos Chaim). But I did not find this statement in the Yerushalmi. And the reason for the prohibition is that it is no less than hesech hadaat. For even according to what I wrote in siman 28 that hesech hadaat is levity—behold, you have no greater levity than such thoughts. And so one should instruct. And a blind person is obligated in tefillin (Beit Yosef in the name of the Rosh, not like the Sefer HaIttim, see there).

A mourner on the first day is forbidden to don tefillin the entire day, even after the burial, as it is written: "and the end thereof as a bitter day." Tefillin are called "glory," and one should not don them on a bitter day, for the first day is the primary intensity of the mourning. But on the second day, he must don them after sunrise, as I wrote in Yoreh Deah siman 388 (see Magen Avraham subsection 5). And even if "new faces" arrived, he does not remove them once he has donned them. And if he had not yet donned them, he should not don them while they are sitting with him until they depart (ibid.). And even though he is in pain in his mourning, and one in pain is exempt as will be explained, that is regarding pain that occurs on its own. But regarding this pain, he is obligated to exert himself and divert his pain at the time of donning them (Sukkah 25b). And on Tisha B'Av, one is obligated in tefillin, for it is an old mourning. However, our custom is not to don them in the morning, for you have no "bitter day" greater than this. And at Mincha, when the pain has already subsided slightly, we don them. And it will be explained further on in siman 555, see there.

A groom and his groomsmen, and all the members of the wedding party—are exempt from tefillin during the time of the feast, because drunkenness and lightheadedness are common among them (Sukkah 25b). And this is when the feast continues until the morning. They are likewise exempt from prayer, since they will not be able to concentrate. However, regarding the recitation of Shema they are obligated, because the primary concentration is in the first verse post facto, and they are able to concentrate. And this was according to their time. But now, when in any event we do not concentrate so much—they are obligated also in prayer. And one should not ask: How can they recite Shema and pray without tefillin? For this is no question: since they are exempt from tefillin due to drunkenness and lightheadedness—it is like Shabbat and Yom Tov (see Magen Avraham, subsection 7). And even though regarding the recitation of Shema and prayer such drunkenness does not exempt, for they are not truly drunk but rather exceedingly joyful, nevertheless regarding tefillin it constitutes lightheadedness and is forbidden.

And this is according to the law. However, our teacher, the Rema, already wrote in a responsum (siman 132) that we are accustomed to interrupt the feast when the time for prayer arrives. And they don tefillin, for since they interrupt in order to pray—it follows that there is no lightheadedness. And they recite Kriat Shema and pray as on all other days, and the groom also dons tefillin and prays. And there is a position of the Rishonim that the fact that our sages, of blessed memory, exempted the groom, the groomsmen, and the members of the feast is not because of drunkenness or lack of intention. Rather, it is because of the principle we hold that "one who is occupied with a mitzvah is exempt from a mitzvah," and the joy of a groom and bride is a mitzvah; therefore, they are exempt from other mitzvot. And according to this reason, there is no difference between our generations and previous generations, and whoever wishes to rely on this reason—may rely on it. And this applies in the summer time when sometimes the meal extends until several hours into the morning—they may eat and drink, provided that the groom is with them, for if the groom has departed from them—there is no mitzvah here. But the simple custom is like the first opinion. And see what I wrote at the end of siman 70.

And so our sages, of blessed memory, said there that writers of tefillin and mezuzot at the time they are engaged in their work, whose intent is not for the sake of a livelihood but for the sake of a mitzvah, and so too their merchants and the merchants of their merchants and all who engage in sacred work only for the sake of a mitzvah—are exempt from donning tefillin all day, except during the time of Kriat Shema and prayer. And according to this, for us, this law is not relevant, for in any case we do not go about all day in tefillin as I wrote in the previous siman. However, when they are engaged in their work, and the time for Kriat Shema and prayer arrives—they shall not interrupt even if the time passes, for one who is engaged in a mitzvah is exempt from a mitzvah. And according to this, this law is relevant even for us. Nevertheless, ab initio he should be careful not to begin them once the time for Kriat Shema has arrived. But if they began—they do not interrupt, and all the more so if he began before this time. And our scribes who work for the sake of a livelihood—are obligated to interrupt in any case.

And know that this which we have said, that he does not need to interrupt even if the time passes, because one who is engaged in a mitzvah is exempt from another mitzvah—this is even when he is able to finish the writing after he prays, and it turns out that the Kriat Shema and the prayer are a passing mitzvah and this is not a passing mitzvah. Nevertheless, he does not need to interrupt, for thus the Torah decreed that anyone who is engaged in a mitzvah is exempt at the time of the act from other mitzvot. Therefore, we hold that one who guards a corpse is exempt from Kriat Shema, prayer, and tefillin, even though he is able to fulfill them even during his guarding (the HaGra"z). And so too, one who digs a grave for a corpse is exempt; even though he rests a little between digging and digging—this is in order to strengthen his strength. And so too, anything similar to this (ibid.).

However, one is not called "engaged in a mitzvah" regarding the exemption from other mitzvot except at the time that he is performing the mitzvah, and not when the mitzvah is already upon him. That is to say: when he is donning the tefillin, he is called "engaged in a mitzvah." But once he has already donned them, even though the tefillin are upon him and he is performing a mitzvah, nevertheless he is not called "engaged in a mitzvah." And so too, when he finds a lost object and is tending to it, he is called "engaged in a mitzvah," but when he has placed it in his house—even though he is performing a mitzvah by guarding it—he is not called "engaged in a mitzvah" such that he would be exempt from another mitzvah. And it is not similar to one who guards a corpse, for there every moment is called performing an actual deed, as he must watch over it because of mice and the like. And it is proper that even when one is truly "engaged" and another mitzvah happens upon him, and he is able to perform both without exertion, "from being good do not be called evil" and he should perform both (ibid.). And it is possible that even by the law it is so, for they only said "one who is engaged in a mitzvah is exempt from a mitzvah" when he must exert himself for the other with a different exertion aside from the first, but not when there is one exertion for both of them. And it requires further study.

One who is in distress: Even one in distress due to the cold, and similarly anyone whose mind is not settled due to physical pain or toothaches. And anything similar to this where the distress comes of its own accord, and it is not in his power to divert his mind from it, unlike distress regarding business or the distress of mourning, where it is in his power to exert effort and divert his mind from it as I wrote in section 8. But regarding such distresses that it is impossible to divert from one's mind—he is exempt from tefillin, for this is like hesech hadaat, and as I wrote in siman 28. Therefore, if it is possible for him to settle his mind and don them—he is obligated to do so. And in our days we have not heard of one exempting himself from tefillin because of this. Furthermore: the essence of this law is not understood: for its source is from the Rambam, and he holds that hesech hadaat is according to its plain meaning, and therefore at the time of distress he indeed diverts his mind. But the Tur and Shulchan Aruch hold that hesech hadaat is only levity, and surely in one who is in distress there is no levity. Rather, in siman 28, section 4, we were pressed to settle the matters that through this he might come to levity, see there. But nevertheless, this is not so clear according to their system, and therefore one should not be entirely lenient in this. And it requires further study.

Our teacher, the Beit Yosef, wrote in section 10: One who reads the Torah is exempt from donning tefillin all day, except during the time of Kriyat Shema and prayer. Thus far his words, and this is based on the Mechilta in Parashat "Bo" which said: Anyone who occupies himself with Torah is exempt from tefillin, see there. And the Ri explained it as referring to the entire day, and not to Kriyat Shema and prayer (see Beit Yosef). And according to this, for us, since in any case we do not don them all day as I wrote in the previous siman, he should not have brought this law. Rather, in order that one should not err based on the Mechilta that he is entirely exempt—therefore he brought it, and explained that it refers to the entire day. (And in Or Zarua siman 594 he had a different version of the text in the Mechilta, that one who dons tefillin is like one who occupies himself with Torah, as it is written: "In order that the Torah of Hashem shall be in your mouth." See there.)

One should not remove tefillin in the presence of his teacher, for it is a degradation that he uncovers his head in his presence. Rather, he should turn to another side and remove them not in his presence, for the fear of his teacher must be upon him. And so too before a Sefer Torah one should not remove them, but rather turns to another side. And so we practice. And according to the reason, also in the presence of his father he should not have removed them. However, they did not practice so, and also in the poskim this was not mentioned (and see in the Tur and Magen Avraham, subsection 14). And if he needed tefillin and a mezuzah, and his hand cannot afford to buy both – tefillin come first, for it is an obligation upon his body. And if he can borrow tefillin from another – mezuzah comes first (Magen Avraham, subsection 15). And an excommunicant and a leper – they are forbidden to don tefillin.