Siman 262

The time of milah is on the eighth day and not before, as is explicit in the Torah. And specifically during the day and not at night. And so the sages taught (Yevamot 72b): "On the eighth day he shall be circumcised"—could it be either by day or by night? The verse teaches: "On the day." I only know this for one who is circumcised on the eighth; from where do we know one who is circumcised on the ninth, the tenth, or after ten? The verse teaches: "And on the day," see there (see Shabbat 131a). And if he was circumcised within eight days, the Rosh wrote in the nineteenth chapter of Shabbat (siman 5) in the name of the Rash, that there is no need to draw from him the blood of the brit. And in the Hagahot Maimoniyot, the first chapter of Milah (the Rambam, Laws of Milah 1), he wrote that when one circumcises him at night, he must return and draw from him the blood of the brit, and night, even after eight days, is worse than within eight days and during the day. And this is the opinion of our teacher, the Rema, who wrote: If he transgressed and circumcised at night—he must return and draw from him the blood of the brit. If they circumcised him within eight days and during the day—he has fulfilled the obligation. Thus far his words. And he holds that these opinions do not disagree. And even though according to logic it is more deficient within eight days, for the time for him to be circumcised has not yet arrived, than one circumcised after eight days whose time has already arrived and they circumcised him at night, in any event they are equal. And the Rosh disagrees with the Hagahot Maimoniyot, and this is the opinion of our teacher, the Beit Yosef, in his great book, see there. Nevertheless, our teacher, the Rema, does not hold so, and his reason appears to be that the day is the time of milah for the whole world. Therefore, even though this infant is still within eight days—nevertheless, it is a milah. This is not the case at night.

And there are some of the great authorities who rejected the words of our teacher, the Rema, and also the words of the Rosh from Menachot (Menachot 72a) regarding the reaping of the Omer at night. And Rabbi and Rabbi Elazar son of Rabbi Shimon disagreed as to whether, if it was reaped by day, it is valid. And Rava said there that Rabbi Elazar son of Rabbi Shimon, who holds that if it was reaped by day it is invalid, holds like Rabbi Akiva that labor which can be performed on the eve of Shabbat does not override the Shabbat. And he holds that the reaping of the Omer overrides Shabbat. And if it should enter your mind that if it was reaped by day it is valid, why does it override the Shabbat? See there. And if so, regarding milah as well: if it should enter your mind that if one was circumcised within eight days it is valid, why does it override the Shabbat? Rather, certainly within eight days it is nothing (Shach subsection 2). And from this he also raised a difficulty against the Rambam in the seventh chapter of Temidin (Rambam, Laws of Continual and Additional Offerings 7), who ruled that the reaping of the Omer overrides Shabbat, and yet if reaped by day it is valid, and these are two opposites according to the sugya of the Shas. And many things were said regarding this, and there are those who answered that this rule applies only to sacrifices, as the Tosafot wrote there, similar to the Tamid. But regarding milah, it is possible that even though if one was circumcised within eight days it is valid, nevertheless it overrides Shabbat (Ketzot HaChoshen there and Sha'agat Aryeh siman 52). However, the words of the Rambam are not answered by this.

In my humble opinion, it seems clear that the Rambam and the Rosh rejected this sugya from the halacha, and only Rabbi Yochanan is the one who holds this way. And the halacha is not like him, as is explained in Yevamot (Yevamot 20b) regarding a widow from betrothal who fell for yibum before a Kohen Gadol, where Rabbi Yochanan and Rabbi Eleazar disagree. For one said that she can perform yibum, for a positive commandment comes and overrides a negative commandment, and one said that since it is possible with chalitzah – it does not override a negative commandment. And the other holds that chalitzah in the place of yibum is nothing. And such is the halacha, as is explained in the Rambam, chapter six of Yevum (the Rambam, Laws of Yibum and Chalitzah), because Rava holds this way, see there. And now, these matters are a kal vachomer: for if chalitzah, which the Torah gave permission to perform, nevertheless, since the essence of the mitzvah is yibum, it overrides a prohibition in the Torah, all the more so regarding reaping by day or circumcision within eight days, which the Torah did not command to do so, that the mitzvah in its proper manner overrides a prohibition of Shabbat. And we shall say that it is Rabbi Yochanan who holds in Yevamot there that it does not override, and therefore he was also exacting in Menachot accordingly. This is not the case according to what we maintain, that yibum overrides a prohibition in order to perform the mitzvah with hiddur, certainly it overrides Shabbat in order to fulfill according to the mitzvah stated in the Torah.

However, there is that which is to be wondered at: for in the Yerushalmi of Shabbat (end of the nineteenth chapter) we say that there is no orlah except from the eighth day and onward, and before this he is not called "arel" at all. And it is permitted to anoint him with oil of terumah, even though an arel is forbidden in terumah, except for the night of the eighth which is like the eighth day, for the night is not considered lacking in time; see there. And also in our Shas in Yevamot (Yevamot 71a) it implies explicitly so, for it asks there: A minor who is an arel, what is the law regarding anointing him with oil of terumah? And it meant to say that orlah not in its time is considered orlah. Rava said: And can you reason so: "Let all his males be circumcised etc." – and this one is not a candidate for circumcision etc., see there. Behold, it is explicit that before the eighth day he is not called "arel," and is not relevant to milah at all. And perhaps he holds that only regarding the matter of terumah did they say so. And that which they said, "he is not a candidate for circumcision" – this is certainly so, for initially the Torah commanded to perform milah on the eighth day and not before.

However, regarding the law, all the great later authorities agreed that whether he was circumcised within eight days or whether he was circumcised at night—even on the night of the eighth—it is not a circumcision, and one must return and draw from him the blood of the brit. And so one should rule and not deviate. And there is one of the great authorities who wishes to say regarding the intention of the Rosh, that his intention was not that he fulfilled the obligation of circumcision when he circumcised within eight days, but rather the intention is that he lost the mitzvah of circumcision, for he cut the orlah before the time and there is nothing left to circumcise (Magen Avraham ibid.). For it is a "crooked thing that cannot be made straight." And according to his words, drawing the blood of the brit would not be effective. And I wonder: how is this worse than one born already circumcised, according to the one who holds that one must draw from him the blood of the brit? It follows that drawing the blood of the brit is effective even for one whose orlah is cut. And there is further clear proof for this, for the Tur later in siman 264 (Tur Yoreh Deah 264) ruled that a gentile is disqualified from circumcising. And if the gentile circumcised—the Israelite must return and draw from him the blood of the brit, see there. And all the more so regarding one circumcised within eight days, that drawing the blood of the brit is effective. Therefore, the primary law is to return and draw from him the blood of the brit. However, if this matter occurred, it appears that on Shabbat it is forbidden to draw from him the blood of the brit, for perhaps we hold that he does not need to draw it, and he would be desecrating Shabbat where there is no mitzvah. (And so wrote the Taz, subsection 2. And see Nekudot HaKesef, where it appears that he disputes the Taz on this. And so it is implied from his words in the Shach: and Heaven forbid to rule so. And so wrote the Bach, that it is due to a stringency, see there, and if so, how is it possible to desecrate Shabbat for this?)

The time for milah is on the eighth day from the Torah, in the morning from when the amud hashachar has risen, for then it is day. Nevertheless, the sages taught in the Mishnah in Megillah (Megillah 20a) that one may only perform milah from the netz hachamah. However, if he performed milah from the amud hashachar—he has fulfilled the obligation. Rashi explained the reason: because not everyone is expert in the amud hashachar, therefore they must wait until the netz, see there. And such is the law regarding all mitzvot that apply during the day, that ab initio they are from the netz hachamah, and ex post facto it is valid from the amud hashachar, as is explained there. This is the wording of the Rambam: One never performs milah during the day except after the rising of the sun, whether in its proper time or not in its proper time, etc., and if he performed milah from when the amud hashachar rose—it is valid. Thus far his words. And it seems to me that regarding what he wrote "never," his intention is: even in a time of pressing need one should not perform milah before the netz, since the sages forbade it ab initio. And see what I have written in the next section.

The wording of the Tur is very perplexing regarding this matter, as he wrote: The time of milah is on the eighth day from his birth, and during the day and not at night. And from the rising of the dawn of the eighth day is the beginning of its time etc. Thus far his words, and it is against the Mishnah. And if his intention is that according to the Torah it is so, nevertheless he should have mentioned that according to the rabbis one may not perform milah before sunrise, just as he himself wrote so in Orach Chaim siman 588 regarding the sounding of the shofar, see there. And in truth, our teacher, the Beit Yosef, in his great work wrote that there is an omission in his words. And there is one who wrote that his intention is that for a great need one may ab initio perform milah from the rising of the dawn (Perishah in the name of the Rashal). And it is very perplexing to permit ab initio against an explicit Mishnah. And it is not the way of the Tur to leave his words so obscured, and especially since from the words of the Rambam we have inferred that it is not so. Therefore, the primary view appears to be like the words of our teacher, the Beit Yosef, that there is an omission in his words. Furthermore, it appears to me that he relied on what he wrote in the laws of shofar. And a proof for this is that also in the laws of Megillah he did not clarify this, but certainly he relied on what he wrote the first time. And such is the way of the early poskim, to rely on what they wrote previously.

And the sages taught in the Mishnah (ibid.): That the entire day is valid for the mitzvot whose obligation is by day. And it was taught in a baraita in Pesachim (Pesachim 4a): The entire day is valid for milah, but the zealous hasten to perform mitzvot, as it is said regarding the Binding: "And Abraham rose early in the morning." And know that in the Mishnah in Megillah there, where it enumerates all the specific mitzvot that are valid the entire day – it does not enumerate milah among them, see there. And it appears to me that the Tanna omitted it intentionally, for certainly regarding milah it is also so. However, in other mitzvot there is not such a strict concern if we delay slightly, even though it is certainly a mitzvah to hasten. But regarding milah, which is the seal of the holy covenant, and through this one enters into holiness – there is a great concern not to delay it. Therefore, even in the baraita, it did not teach this matter of "the zealous hasten" except regarding milah. And we must cry out against the custom of our time, that they delay the milah several hours in the day, because of foolishness that all the relatives have not arrived, and similar such foolishness. And there are places that delay until after midday, and it is a criminal iniquity.

One should not wonder that since the zealous hasten to perform mitzvot, why do they not circumcise before the prayer? For this is impossible: First, because prayer is a frequent mitzvah, and it contains many mitzvot: tzitzit, tefillin, the recitation of Shema, and prayer. Furthermore, behold it is a mitzvah to make a feast, and before the prayer they are unable to taste anything. However, this is certainly so: if the congregation has already prayed, and the mohel or the sandak or the father of the son have not yet prayed for some reason—they should circumcise and afterward pray. And circumcision precedes a met mitzvah. And if the father is an onen, it will be explained in siman 341. And if the circumcision was set aside due to the illness of the infant, and the circumcision and the pidyon haben happened to fall on one day—likewise, the circumcision is preceded, even though the pidyon is in its proper time and the circumcision is not in its proper time; nevertheless, circumcision is superior to it. Unless they are still unable to circumcise him, and the time for pidyon has arrived, for then they redeem him even when he is not yet circumcised. And on Rosh Hashanah when a circumcision occurs—the circumcision is also preceded to the shofar blasts, as is explained in Orach Chaim siman 584. And to all mitzvot, circumcision is prior.

If the infant was ill – one does not circumcise him until he recovers, and even if he was ill in a single limb, and even if it is mere pain. This is the wording of the Nimukei Yosef (in the chapter "HaArel"): And the masters have already inferred from this, that due to any pain or illness whatsoever – one delays circumcising him until he recovers, so that he does not come to a state of danger. And so wrote the Gaon, that any infant who is in pain, whether due to illness or due to another matter – one does not circumcise him until he recovers. Thus far his words. And the Ittur wrote thus: I have seen that for any infant who is in pain or is physically weak – one waits for him until he recovers. Thus far his words (Beit Yosef).

There is a distinction between an illness of the entire body and an illness in one limb. For an illness in one limb—as soon as he is healed, they circumcise him. But one who is ill in the entire body, such as a fever or a heat-related illness, or any other type of illness that spreads through the entire body—they must wait for him an additional seven full twenty-four hour days specifically after he is healed. And thus our sages, of blessed memory, said in Shabbat (Shabbat 137a): If the fever has left him, meaning the heat has exited the body—they give him seven days from when he recovers. And it was asked of them if he requires seven full twenty-four hour days, and it was not resolved, and in a case of danger to life one is lenient. And the reason he requires seven days: since the illness spread through the entire body, the body requires more strengthening. And if he has eye pain, if the pain is weak—they circumcise him as soon as he recovers. But when the pain is strong, such as if there is a discharge, or if tears flow because of the pain, or if blood was flowing, or if there was mucus and the onset of the illness, this matter spreads through the entire body, for one profanes the Shabbat for this, as I wrote in Orach Chaim siman 328, and therefore he requires seven full twenty-four hour days after he recovers. And it appears to me that regarding everything explained there for which one profanes the Shabbat, such as a wound on the back of the hand or the back of the foot and the like—they must wait seven full twenty-four hour days after he recovers.

There are those who wish to say that when he is healed on Thursday, he should not be circumcised, because the third day of the circumcision would be on Shabbat, and they would need to desecrate Shabbat. Since it is a circumcision not in its proper time, it is forbidden to cause desecration, just as one does not set sail on a ship three days prior to Shabbat, as I wrote in Orach Chaim siman 248. Consequently, according to those who hold that the second day of circumcision is more dangerous than the third day of circumcision, one should also not circumcise on Friday (and this is the intent of the Taz, subsection 3). However, there is one who rejected their words with a correct reason, for regarding a ship itself they said in Shabbat (Shabbat 19a) that for a matter of a mitzvah it is permitted, and all the more so regarding circumcision (Shach, end of siman 266). Furthermore, since the poskim did not happen to mention that for a circumcision not in its proper time they should not circumcise on Thursday, therefore this law is not so. And such is the simple custom, and it is not to be changed.

A tumtum who was torn and found to be a male—he is circumcised on the eighth day from his birth (Beit Yosef). And one also desecrates the Shabbat for him, as will be explained in siman 266. But an androgynos, and one who has two orlahs, which is to say two skins or two organs, and one born via cesarean section—they are circumcised on the eighth. But one does not desecrate the Shabbat for them, and it will be explained in siman 266.

If he was born during bein hashemashot, which is a doubt whether it is day or doubt whether it is night, we automatically count from the following day, and he is circumcised on the ninth day, which is a doubtful eighth. And even according to the opinion that holds that if one was circumcised within eight days he has fulfilled the obligation—this is post facto and not ab initio. Therefore, automatically, if he was born on Friday during bein hashemashot he is circumcised on Sunday, and it is the tenth day, doubtful ninth. For it is impossible to circumcise him on Shabbat, as perhaps it was day and the time was Friday, and a circumcision not in its proper time does not override Shabbat. And it will be explained in siman 266. However, if he extended his head outside the ante-chamber while it was still day, or if they heard him crying, even if he was born several days later—one counts for him eight days from when his head emerged, or from the day they heard him crying. And some say specifically in an ordinary case, but if his mother said that the infant was positioned in her womb as at other times, and she had no birth pangs at all even though they heard him crying—we count for him from the day of birth. For even though it is uncommon for him to cry without the emergence of the head outside the ante-chamber, nevertheless the mother is believed to say that he was positioned as at other times and cried, for if he were outside the ante-chamber she would have immediately been in labor to give birth. And the same law applies when he performed some action with his mouth—it is considered like crying, for as long as he is inside, his mouth is closed. And now we are almost not expert in all this, and we do not establish the law based on this, and we have never heard that they should rule so. And this is due to the lack of expertise.

Our teacher, the Beit Yosef, wrote in section 5 (Shulchan Aruch Yoreh Deah 262:5): If he was born when very small stars were visible in the sky – one may rely on the stars to provide a doubt to circumcise the next day, since it was neither Shabbat nor Yom Tov. And even though the sky was shining like the light of day. Thus far his words. He further wrote: If immediately when the newborn extended its head outside the birth canal three medium stars were seen – one may rely on them that it is night, even if the next day is Shabbat. But if they delayed afterward, if according to the delay it appears to them that it was day at the time the head was extended – they have only what their eyes see, and he shall be circumcised on the eighth day even if it occurs on Shabbat. Thus far his words. And his words require explanation.

And what appears in my humble opinion is that this is the explanation: For behold, the definitive sign of night is three medium stars. And so our sages, of blessed memory, said in Shabbat (Shabbat 35b): Not large stars that are visible during the day, for that is still day, and not small stars that are visible at night, meaning a type of small stars, and it is already night. Rather, medium ones, meaning a type of medium stars. And regarding this, he said in the second law that when three medium ones are seen—we do not look at any other sign, and it is a very definitive sign, and we rely on this even regarding Shabbat. Meaning: if this occurred on Friday, and immediately upon exiting outside to the corridor they saw three medium stars—it is a definitive sign that he was born on Shabbat, and we circumcise on the following Shabbat. But if there was a delay—we estimate according to the delay. Meaning: that if there was some delay, and they saw three medium ones after the delay, it is a sign that he was born during the day and we circumcise him even on Shabbat. Meaning: if he was born on Shabbat towards evening, because at the sighting of three stars it is then night, and before that it is day. And since there was a delay, and after the delay they saw the stars—it is a definitive sign that at the time of the birth it was day.

And regarding the first law, it was the opposite: that to the appearance of the eye in the sky it was complete day, and had they not seen stars, it would be clear that it was day. Yet despite all this, they saw very small stars, meaning not a species of small stars, for this is impossible since they are only visible at night. Rather, the intent is that the medium stars appeared very small. And according to this, it could be said that it is still day. But nevertheless, this creates a doubt, so as not to circumcise him on this day but rather on the morrow. And this is a doubt of the eighth or a doubt of the ninth, since it is not Shabbat or Yom Tov. Meaning: that if the morrow in the coming week were Shabbat or Yom Tov—it would be necessary to leave another day to circumcise him on a doubt of the ninth or a doubt of the tenth. (And according to this, the words of the Shach in subsection 9 are well-settled. And in vain did they challenge him in the Likkutei Peri Chadash and in the novellae of the Gaon Rabbi Akiva Eiger. Examine carefully and you will find it simple.)

Our teacher, the Beit Yosef, further wrote: That this matter is not dependent upon prayer, whether they prayed while it was still day, neither to be lenient nor to be stringent. Thus far his words. For what does this have to do with prayer? And it appears that even if they accepted Shabbat, since it was still full day—it is considered as being born during the day. And likewise the opposite, when one was born on Shabbat toward evening and it was night, even if they had not yet performed Havdalah—it is considered as being born at night. And even if the father and mother themselves already prayed Maariv or accepted Shabbat, or had not yet performed Havdalah, nevertheless, the time of milah follows day and night according to the creation. And only in a case of doubt, such as bein hashemashot or as I wrote previously, is it necessary to be stringent, not because of the actions of man. And also that which was explained regarding small stars is because of the doubt of bein hashemashot. But when three medium ones are seen—it has left the category of the doubt of bein hashemashot. And the law of bein hashemashot will be explained in siman 266. And know that I have seen in books that were composed on the laws of milah, that they were uncertain regarding certain specific illnesses, whether they are called illnesses to delay the milah because of them. And they were also uncertain regarding certain illnesses, whether their law is like an illness that spreads through the whole body, and requires a waiting period of seven full days, such as an infant whose testicles became swollen and the like. And I wonder at all these doubts. For it is simple that as long as there is any change in the infant, in whichever organ it may be—they delay the milah. And when there is a doubt if this illness spreads through the whole body—they should ask a doctor, for behold, we rely on doctors regarding the desecration of Shabbat, and to eat on Yom Kippur. And if there is no doctor here and for us it is a doubt, or if even the doctor has a doubt—it is a clear halakhah that a doubt regarding life is judged leniently, and we wait seven full days from when he was healed. And what benefit is there when we explain certain details in this? Ultimately, it is necessary to ask the doctors.