Rav Nehemya Taylor
Torani Advisor to Torah MiTzion

Yom Tov Sheni, Part 2

In our first article, we presented a historic overview of the halakhic development of Yom Tov Sheni (the second day of Yom Tov in the Diaspora). In this article we will attempt to clarify the halakhic parameters of Yom Tov Sheni. We observe many mitzvot on Yom Tov Sheni which invoke the name of God (a practice which would be prohibited if it were not in the context of a mitzvah). These include making kiddush and havdalah, making the blessing of “al achilat matzah” at the second seder, and many additional blessings. On Yom Tov Sheni, we also disregard the positive commandment of putting on tefillin, and we do not allow mourning to begin even though many decisors feel that the first day of mourning is mandated by Torah law, and so on.

We need, then, to understand the halakhic framework of Yom Tov Sheni, and to define it clearly.

The Rambam writes, “The two-day celebration of Yom Tov which takes place in the diaspora is a custom. Yom Tov Sheni is rabbinic (midivrei sofrim),and is among the things which were innovated in the exile” (Hilkhot Yom Tov 1:21). He begins by saying that the binding nature of the second day is because of custom, but ends by saying that it is a rabbinic requirement.

Elsewhere, the Rambam writes, “Nowadays when there is no Sanhedrin or Beit Din in the Landof Israel, we determine the months based on mathematical calculations. It would then make sense that everyone, even those living in the farthest reaches of the diaspora, would celebrate only one day of Yom Tov as those living in Israeldo, since everyone relies upon the same calculations. However, there is a takkanah (rabbinic enactment) demanding that we be careful to observe this custom of our ancestors which has come down to us” (Hilkhot Kiddush HaChodesh 5:5).

In yet a third place, the Rambam writes, “There are twenty-four offenses for which a person, male or female, is excommunicated (niddui). . . . Number eleven is someone who desecrates Yom Tov Sheni, even though it is a custom” (Hilkhot Talmud Torah(6:14). He does not mention here that Yom Tov Sheni is a rabbinic enactment.

The Lechem Mishneh resolves the contradiction: “Even though it is rabbinic,it is primarily a custom.” The Brisker Rav zt”l (also known as the Griz, Rav Yitzchak Zev Soloveitchik) adds, “The laws applying to Yom Tov Sheni, as well as its very existence, are primarily custom. Rabbinic authority requires us to to follow the custom. This is similar to what the Rambam said in Hilkhot Yom Tov (the first quote above) — the second day is fundamentally a custom, andrabbinic authoritymandates following the custom” (Novellae of the Griz, Arakhin 10a).

What the Lechem Mishneh and the Griz are saying is that originally, the Jews accepted Yom Tov Sheni as a custom, and it remained fundamentally a custom, but the halakhic obligation to observe it is a rabbinic enactment. The Rivash writes similarly in his responsa:

Those living in the diaspora treat the second day as Yom Tov, on account of custom alone. The Gemara (Beitzah 4b) says that the Beit Din in Israelinstructed, “Be careful to observe this custom of your ancestors which has come down to you,” and this is a rabbinic requirement. When the months were sanctified on the basis of testimony, it was necessary for the far-flung places which the messengers were unable to reach to observe two days of Yom Tov. This was because they did not know which day was declared Rosh Chodesh. Therefore, the Sages enacted that nowadays too, the people of the diaspora should continue to follow their custom and observe two days, even though we now rely on mathematical calculations to determine the months (Responsa of Rivash, 16).

Based on this, we can conclude that the binding nature of Yom Tov Sheni is the result of a rabbinic enactment which had its source in a custom of the Jewish people. Therefore, we make all the blessings and observe all of the relevant commandments. These fall under the rubric of “You shall not deviate (Lo Tasur) from the words of the Sages to the right or to the left” (Devarim17:11). Since the force of Yom Tov Sheni derives from a rabbinic enactment, wearing tefillin then would show disrespect for this enactment. The Rashba elaborates:
One is prohibited from putting on tefillin [on Yom Tov Sheni], since we follow the opinion that tefillin is a time-bound positive commandment (as it is limited to weekdays). If on Shabbat or Yom Tov he put on tefillin intending to fulfill a mitzvah, he has transgressed Bal Tosif (the prohibition of adding to the Torah, Devarim 4:2). So too, we extend the prohibition from Torah-mandated holidays to rabbinically mandated holidays as well. This is because the Sages patterned their enactments after Torah laws. If they had not done so, people would not take their enactments seriously.

Besides, not putting on tefillin is only a passive transgression (shev v’al ta’aseh).

For further confirmation of the correctness of this decision, follow the principle, “Go out and see what the people do” (Berakhot45a).

The treatment of a corpse is different, and we are more lenient on Yom Tov Sheni (and permit burial then, which is prohibited on the first day), because the additional factor of preserving human dignity comes into play (Responsa of Rashba, 1:61).

However, there is an opposing opinion which maintains that the force of Yom Tov Sheni is only that of custom. According to this opinion, the recitation of blessings is very problematic. Tosafot writes this in the name of Rabbeinu Tam:

Similarly, we find that we make blessings on Yom Tov Sheni even though it is just a custom, as we see in the first perek of Beitzah(4b) . . . On Yom Tov Sheni we do not say “Who commanded us.” We simply acknowledge the holiness of the day in shemoneh esrei and birkat hamazon. It is true that on the second day of Rosh HaShanah we do make the blessing of “Who commanded us to blow the shofar,” but this is because the status of Rosh HaShanah is more stringent, and the two days are seen as one unit (Tosafot, Sukkah 44b, s.v. kan). (The question of the recitation of “Who commanded us” on Yom Tov Sheni arises regarding the blessings on matzah and maror as well. The Gilyon HaShas discusses this question, which was first raised by the Ran. See too the Arukh LaNer.)

The opinion of Rabbeinu Tam that the force of Yom Tov Sheni is due to custom is also followed by the Rosh (Berakhot, chapter 2 and in Sukkah) as well as other early Germanic authorities such as the Or Zarua. The Ran in Sukkah disagrees with Rabbeinu Tam and maintains that the basis of the practice is a rabbinic enactment, as we wrote above.

We will conclude this discussion with the Chatam Sofer, who, as is well known, was one of those who led the crusade against the Reformers who wished to get rid of Yom Tov Sheni. He writes:
How great is the power of custom! We go so far as to declare Yom Tov Sheni a holiday with kiddush, and to include the sanctification of the day in shemoneh esrei . . . . If our Sages were not certain that God approves of whatever the Sages decide, they would not have permitted such behavior. They did so in order to assure that their words would not be taken lightly or disregarded. We see how serious this is.

The words of Tosafot (Sukkah 44b) are a bit problematic. They write that we do not say “Who commanded us” on Yom Tov Sheni, but simply declare the sanctity of the day during kiddush. This is problematic, since we do say “Who commanded us” when we eat the rabbinically required maror on the first night of Pesach, and we repeat the blessing the second night. Furthermore, we must object to Tosafot’s implication that saying kiddush is not a serious matter (since it does not contain the phrase “Who commanded us”). Were the Tosafists not disturbed by what would be a lying and false proclamation of Yom Tov if not for the force and strength of this custom?

It seems to me likely that Yom Tov Sheni is considered a Torah commandment in the Torah, because it is a practice which was accepted by the entire Jewish nation as an oath (neder). This would explain both how we can be lenient then (regarding tefillin, mourning, and the like), and how we can be stringent in treating its desecration as grounds for excommunication, as the Ran points out. Originally Yom Tov Sheni was accepted as a rabbinic enactment, but the way in which the people accepted it moved it into the category of an oath. A person who violates an oath has transgressed Bal Yachel, which is a Torah prohibition. The oath is entered into via acceptance of a practice. (See the Ran in Nedarim 8a s.v. alav lehashkim for more on oaths).

I have dealt with this at some length because, on account of our many sins, there are many wanton people in our nation who are making false and mocking claims regarding Yom Tov Sheni and who claim that it is just an insignificant custom. They do not wish to follow in the footsteps of the Sages of Israel. They lose their souls (Melakhim Alef 2:23); they neither know nor understand; they walk in darkness (Tehillim 82:5) (Responsa Chatam Sofer, Orach Chayim 145.).

The Chatam Sofer accepts the basic position that Yom Tov Sheni is a custom. However, in order to resolve some of the difficultiesTosafot raises regarding this position, he suggests a novel idea. Originally Yom Tov Sheni was a custom, which was then accepted by all in the framework of a rabbinic enactment. Still later, this universal custom was accepted as a binding oath whose violators would be guilty of transgressing the Biblical prohibition of Bal Yachel.

To summarize the three positions:
1) The Rambam, as understood by the Lechem Mishneh, the Griz, and other early decisors, says that what was originally a custom became a rabbinic enactment, so one who desecrates Yom Tov Sheni transgresses Lo Tasur.

2) Rabbeinu Tam and other early Germanic decisors say that its force is of custom, and there are certain customs over which we do recite blessings.

3) The Chatam Sofer says that it is a custom which the nation accepted upon itself as a binding oath. Therefore, one who desecrates Yom Tov Sheni transgresses Bal Yachel.

In our next article, we will discuss the unique problems of shlichim who are living in the diaspora.