(2018/5779)
Introduction: An Incident at Shaarei Orah
In 2000, on a Sunday morning soon after I was privileged to assume the position of Rav at Congregation Shaarei Orah, the Sephardic Congregation of Teaneck, there were nine men and a boy the age of eleven. Could we count the boy as part of the Minyan if he were to hold a Torah or a Chumash? Jack Varon, a veteran leader at Shaarei Orah, immediately noted that Sephardic Jews do not count a Katan (minor) in a Minyan.
It turns out that Jack was correct. Maran Rav Yosef Karo (Shulchan Aruch 55:4) notes that some are lenient about this issue, but that the great Poskim rejected this view. Rav Ovadia Yosef (Teshuvot Yabia Omer 4: O.C. 9) strongly endorses Maran’s view. He adamantly rejects counting a Katan to a Minyan even in an extreme situation such as a community where only nine men resided in a particular community, and the only way to create a Minyan was to count a minor. Cacham Ovadia even rules that if one is present at a Sephardic Minyan that is about to rely on the lenient view, he should walk out so that the Minyan does not conduct a Minyan, a violation of Halachah[1]. Thus, at Shaarei Orah we never count a Katan to a Minyan even if he is holding a Chumash.
The Ashkenazic Approach
The Rama, however, records that there are those who are lenient in a case of great need, and only if the Katan holds a Chumash. There is a rich and varied approach amongst Ashkenazic Jews as to whether this approach is a feasible course of action. This question has never fully been resolved.
The Mishnah Berurah (55:24) cites the Levush and Magen Avraham, who disagree as to whether this constitutes a viable opinion which may be followed even in a case of pressing need. The Mishnah Berurah concludes that in our time, even though many Acharonim object, in a case of great need, a Katan can be included in a Minyan if he holds a Chumash. The Aruch HaShulchan (O.C. 55:10), though, believes that a Katan many never be included in a Minyan.
Amongst twentieth century Ashkenazic Poskim, Rav Yaakov Breisch (Teshuvot Helkat Yaakov 28), Rav Moshe Feinstein[2] (Teshuvot Igrot Moshe O.C. 2:18) and Rav Yosef Dov Soloveitchik[3] permitted relying on the lenient approach in case of great need. Teshuvot Melamed LeHo’il (O.C. No. 4) and Teshuvot BeTeil HaHochmah (4:33) both object to the communal implementation of the lenient approach.
Early twenty first century Ashkenazic Rabbanim continue to debate the issue. Rav Aharon Lichtenstein told me that in case of pressing need, one may rely on the lenient opinion. Rav Gedalia Schwartz, on the other hand, stated during a speech at a convention of the Rabbinical Council of America that if there are Jews who live in the area but unfortunately choose not to attend the Minyan, the lenient view may not be followed even in case of great need,.
Background - Berachot 47b-48a
The Gemara (Berachot 47b-48a) in a long and winding discussion, discusses this very issue[4]: “On the subject of completing a Zimmun, R. Yehoshua ben Levi said: Nine Jews and a slave join together to form a Zimmun of ten. The Gemara raises an objection: There was an incident involving R. Eliezer, who entered a synagogue and did not find a quorum of ten, and he liberated his slave and he completed the quorum of ten. From this we may infer that if he freed his slave, yes, he may join the quorum of ten, but if he did not free him, no, he may not join the quorum of ten. The Gemara responds: In that case, two were required to complete the quorum; R. Eliezer freed one and fulfilled his obligation with another one, who completed the quorum of ten without being freed.
With regard to this incident, the Gemara asks: How did he do that? Didn’t R. Yehuda say: Anyone who frees his Canaanite slave violates a positive Mitzvah, as it is stated with regard to Canaanite slaves: “You will keep them as an inheritance for your children after you, to hold as a possession; they will serve as bondsmen for you forever” (Leviticus 25:46)? How, then, could R. Eliezer have freed his slave? The Gemara answers: The case of a Mitzvah is different. The Gemara asks: It is a Mitzvah that comes through a transgression, and a Mitzvah fulfilled in that manner is inherently flawed! The Gemara responds: A Mitzvah that benefits the many is different, and one may free his slave for that purpose.
In praise of a quorum of ten, the Gemara states that R. Yehoshua ben Levi said: One should always rise early to go to the synagogue in order to have the privilege and be counted among the first ten to complete the quorum, as even if one hundred people arrive after him, he receives the reward of them all, as they are all joining that initial quorum. The Gemara is perplexed: Does it enter your mind that he receives the reward of them all? Why should he take away their reward? Rather, emend the statement and say: He receives a reward equivalent to the reward of them all.
With regard to the laws of joining a quorum, R. Huna said: Nine plus an ark in which the Torah scrolls are stored join to form a quorum of ten. R. Nachman said to him: Is an ark a man, that it may be counted in the quorum of ten? Rather, R. Huna said: Nine who appear like ten may join together. There was disagreement over this: Some said this Halachah as follows: Nine appear like ten when they are gathered. And some said this Halachah as follows: Nine appear like ten when they are scattered, the disagreement being which formation creates the impression of a greater number of individuals.
Similarly, R. Ami said: Two people and Shabbat join to form a Zimmun. R. Nachman said to him: Is Shabbat a person, that it may be counted in a Zimmun? Rather, Rav Ami said: Two Torah scholars who hone each other’s intellect in Halachic discourse join together and are considered three. The Gemara relates: R. Chisda pointed to an example of two such Torah scholars who hone each other’s intellect: For example, Rav Sheshet and I. Similarly, Rav Sheshet pointed: For example, R. Chisda and I.
With regard to a minor’s inclusion in a Zimmun, R. Yochanan said: A mature minor, i.e., one who is still a minor in terms of age, but is displaying signs of puberty, is included in a Zimmun. That opinion was also taught in a Baraita: A minor who grew two pubic hairs, a sign of puberty, is included in a Zimmun; and one who did not grow two hairs is not included in a Zimmun. And one is not exacting with regard to a minor. The Gemara comments: This Baraita itself is difficult. You said that a minor who grew two hairs, yes, he is included, one who did not grow two hairs, no, he is not included, and then it taught that one is not exacting with regard to a minor. What does this last clause come to include? Is it not to include a mature minor? Explain the Baraita as follows: A minor who grew two hairs is included in a Zimmun, and we are not exacting with regard to a minor to ascertain whether or not he has reached the age of maturity.
The Gemara concludes: The Halacha is not in accordance with all of these statements. Rather, the Halachah is in accordance with the statement that R. Nachman said: A minor who knows to Whom one recites a blessing is included in a Zimmun.
The Gemara relates that Abaye and Rava, when they were children, were seated before Rabba. Rabba said to them: To whom does one recite blessings? They said to him: To God, the All-Merciful. Rabba asked them: And where does the All-Merciful reside? Rava pointed to the ceiling. Abaye went outside and pointed toward the heaven. Rabba said to them: You will both become Sages. It is as the popular saying goes: A cucumber can be recognized from its blooming stage. Similarly, a great person can be recognized even from a young age.”
The Rishonim’s Debate - Rambam, Rabbeinu Tam, the Ri, the Rosh and the Tur
The Rambam (Hilchot Berachot 5:7) rules in accordance with the straightforward reading of the Gemara. The entire discussion is dismissed except for R. Nachman who permits counting a Katan who is aware of the One we bless, to join a Zimmun. The implication is that we count a Katan as a third or tenth for a Zimmun, but not for a Minyan (Hilchot Tefillah 8:4) since the view of R. Yehoshua ben Levi is rejected by the conclusion of the Gemara. The Shulchan Aruch (O.C. 199:10) rules in accordance with this opinion. Although the Shulchan Aruch does not permit counting a Katan as the tenth to a Minyan, he is lenient regarding a Zimmun. Biur Halacha (55:4 s.v. V’Lo Nirin Divreihem) explains that regarding Davar SheBeKedushah, the portions of Tefillah which require a Minyan, Rav Yosef Karo adopts a stricter approach.
The Shulchan Aruch permits including a Katan from “Onat HaPe’utot” as the third or tenth for a Zimmun. The Ben Ish Chai (Yr. 1 Korach 11) rules that this refers to the age of nine. Rav Ovadia Yosef (Teshuvot Yechave Da’at 4:13 and Teshuvot Yabia Omer 9: O.C. 91:8:3), though, rules forcefully that a Katan is permitted to join from age six. The story regarding Rava and Abaye, which seems to be presented by the Gemara to show an example of children who recognize Hashem and may be counted to a Zimmun, seems to be fit more with a child the age of six rather than with a child aged nine. Thus, I advise congregants at Shaarei Orah to follow CChacham Ovadia’s opinion.
Rabbeinu Tam (cited in Tosafot Berachot 48a s.v. V’Leit) believes that the Gemara in its conclusion does not reject the opinion of R. Yehoshua Ben Levi presented at the beginning of the Sugya. Rather, it rejects only the discussion beginning with the idea of counting an Aron or Shabbat as an adjunct to a Minyan. Rabbeinu Tam notes that the Gemara equates Zimmun with Tefillah in its earliest stages. Thus, Rabbeinu Tam surprisingly permits counting a Katan as a third or tenth to a Zimmun and as a tenth to a Minyan.
Tosafot cite the practice of some to count a Katan as the tenth if he holds a Chumash. Rabbeinu Tam dismisses this practice as a “Minhag Shetut” (foolish), just as the Gemara dismisses attempts to argue that an Aron or Shabbat may be counted to a Minyan.
The Ri, however, is cited by Tosafot who reports that Rabbeinu Tam never relied on his view in practice. The Ri, based on a report recorded in the Talmud Yerushalmi, rejects the idea of counting a Katan to either a Minyan or a Zimmun. The Rosh (Berachot 7:20) and the Tur (O.C. 55) embrace this view. Thus, the Rama rules that a Katan cannot serve as either the tenth or third to a Zimmun. He notes that this is the accepted practice among Ashkenazim, and rules that Ashkenazim should not deviate from this Minhag.
Even though that in a case of great need, the Rama permits the counting of a Katan as the tenth in a Minyan if he holds a Chumash, he rules out the possibility of counting a Katan as the tenth for a Zimmun. The Rama’s reasoning might be that there is never truly a pressing need to conduct a Zimmun, as there is for a community to conduct a Minyan.
Although R. Nachman seems to permit counting a Katan to a Zimmun if he recognizes to Whom we recite Birkat HaMazon, R. Nachman might be understood as referring only to a Katan who exhibits signs of physical maturity (Shetei Sa’arot) as well.
Conclusion
Sephardic Jews never count a Katan to a Minyan, but will count a child beginning from the age of six (as long as he recognizes Hashem) as the third or tenth to a Zimmun. Ashkenazic Jews never count a Katan to a Zimmun, but might count a Katan holding a Chumash as the tenth to a Minyan in case of pressing need.
Postscript - the Moroccan Approach to Counting a Katan to a Minyan
Rav Mordechai Lebhar (Magen Avot O.C. 55:4) notes that many Moroccan communities relied on the lenient opinion to count a Katan holding a Chumash to a Minyan, but Rav Shalom Messas (Teshuvot Shemesh U’Magein 4:17) was vehemently opposed to this practice. Rav Messas was told that the Minhag in his hometown of Meknes was to include a Katan in a case of great need. Ribi Shalom, in turn, resolutely responded that this is “Sheker Muchlat”, absolutely false. He recounted that in the forty years he spent in Meknes, there were a number of occasions when a Minyan could have completed with a Katan, yet the Katan was not included.
Shaarei Orah member Naftali Melloul (a native of Morocco) recalls occasions in Morocco when a Katan holding a Chumash would be counted to a Minyan. Shaarei Orah member Dr. Michael Benhamu recounts that his father, the well respected Rav Yehuda Benhamu of Florida, once counted his older brother (Rav Avraham) to a Minyan (while holding a Chumash) when the latter was just short of thirteen years old. This occurred when Rav Benhamu served as a Rav in Bogota, Columbia, in the days when it was exceedingly difficult to find a Minyan there at Mincha of Shabbat afternoon.
Rav Lebhar does not explain the basis of those Moroccan Jews who count a Katan as the tenth to a Minyan in case of extenuating circumstances. Rav Yosef Karo seems to reject this opinion; how could they follow the lenient approach even in case of a pressing need? Perhaps the fact that Maran Rav Karo notes that there are those who are lenient about this issue, opens the possibility of relying upon the lenient opinion in case of enormous need. Rav Ovadia Yosef, though, argues that Maran cites this opinion only as a means to express his rejection of this view. This would echo the Mishnah (Eiduyot 1:6) that the reason why we sometimes cite the minority view against the majority approach, is in order to communicate that the minority view is rejected.
[1] Rav Ovadia rules that it is not necessary to engage in such a protest if an Ashkenazic Minyan counts a minor as the tenth to a Minyan.
[2] Rav Moshe believes that the Katan must hold an actual Sefer Torah.
[3] Cited by Rav Hershel Schachter, as noted in Rav Aryeh Lebowitz’ Sefer HaKoneh Olamo pp. 293-294.
[4] Elucidated translation adapted from Sefaria.org.