Public fast day

[א] (הלכה 435)

Question: When a person wishes to rise before the start of the fast and eat, what must he do?

Answer: It is written in the Talmud Yerushalmi, Tractate Taanis¹: 'One who slept and then arose is forbidden [to eat] when he did not stipulate, but if he stipulated it is permitted'.

And Rabbeinu Chananel² wrote: 'Yerushalmi: one who slept and then arose is forbidden — they only taught this where he did not stipulate, but if he stipulated it is permitted'. And the Rosh³ cited it, and so wrote many of the Rishonim.

However, the Maggid Mishneh⁴ wrote: 'And in the Yerushalmi, regarding one who slept and then arose being forbidden — this is what is said where he did not stipulate, but if he stipulated it is permitted; and it is written explicitly in the commentary of the Raavad in Sefer HaItim, but it was not written in the Halachos, and one should be stringent'.

And so wrote the Tashbetz Katan⁵: 'And even though he stipulated, he does not drink after sleep, for thus does it raise the difficulty there: but it was taught [that it is] permitted — and it resolves [the case] with one who is dozing; and from the fact that it does not resolve [it] with one who stipulated, it apparently implies that a stipulation is of no avail according to the Talmud. But Rabbeinu Avi HaEzri permits and brings a proof from the Yerushalmi that it is permitted to eat after sleep by means of a stipulation'.

And the Hagahos Maimoniyos⁶ wrote on this: And in the name of the R"M I found that a stipulation is of no avail, since the Talmud raises the difficulty: but it was taught that one who slept is permitted — and resolves [the case] with one who is dozing; and why does it not resolve [it] with one who stipulated? Rather, learn from this that a stipulation is of no avail, end of quote⁷. However, I can say that the reason it does not resolve [it] with one who stipulated is because it is a self-evident matter that if he stipulated it is permitted — for since people fast even for [partial] hours, all the more so that one can fast in such a manner according to his intent, to eat until dawn rises; and it did not seem reasonable to it to establish the baraisa in a matter that is so self-evident to us and teach us no novelty; therefore it established [it] with one who is dozing, which implies that even without a stipulation it is permitted, and it turns out that our Talmud and the Yerushalmi do not disagree, and this works better in every respect'.

And the Beis Yosef⁸ wrote: 'And all these great authorities who cited this Yerushalmi are worthy to rely upon to be lenient in a Rabbinic matter'.

Question: Must one also stipulate for drinking?

Answer: The Mordechai, Taanis⁹, wrote: 'And some distinguish and permit drinking, for a person is thirsty after eating and after he has slept, and it is as though he stipulated to drink'¹⁰.

And so wrote the Hagahos Maimoniyos, Hilchos Taaniyos there: 'And in accordance with his words the S"H ruled, and cited only the latter version; and so too the Raavyah, and he wrote: and some of our teachers distinguish and permit drinking, for a person is thirsty after eating and after he has slept, and it is as though he stipulated to drink, end of quote. And the Or Zarua wrote on this: and so it stands to reason that drinking is permitted, for certainly a person's intent is to drink water when he awakens at night, end of quote. And so ruled the R"F in the name of R. Eliyahu, that for drinking no stipulation is needed'.

On the other hand, the Kolbo¹¹ wrote that the entire leniency is limited specifically to drinking water: 'And the R"F z"l wrote: and drinking is permitted even without a stipulation, for regarding drinking it is always as though he stipulated, since drinking has no fixed [time], and specifically water'.

And in practice the Mechaber¹² ruled that a stipulation is effective, but that for drinking too one needs a stipulation, and these are his words: 'unless he stipulated to eat or to drink'. But the Rema in his gloss disagreed and wrote: 'And some say that for drinking no stipulation is needed, for ordinarily a person's intent is to drink after sleep, and it is as though he stipulated'.

And several of the Acharonim wrote that it is fitting to be stringent and to stipulate for drinking as well, as the Bach¹³ wrote; and similarly the Taz¹⁴ wrote: 'Some say that no stipulation is needed for drinking, etc. So it is written in the Semak; and in the glosses, specifically with water, and it is fitting to be stringent and stipulate even for drinking, for many disagree with this reasoning'.

And the Levush¹⁵ wrote that this is the practice, and these are his words: 'And some are lenient regarding drinking even if he did not stipulate, for since it is the way of every person to be thirsty it is as though he stipulated; nevertheless they were accustomed to stipulate to drink all night, and that is correct'.

However, the Magen Avraham¹⁶ wrote: '.. and it seems to me that it all depends on what sort of person he is: if he is accustomed to drink at night, he is permitted to drink without a stipulation, and see Siman 581:2 in the gloss'. And so ruled the Mishnah Berurah¹⁷.

If so, l'chatchilah it is fitting to stipulate for drinking as well (unless he is accustomed to drink at night), but b'dieved, where he did not stipulate, he may rely on the poskim who permitted drinking before the start of the fast¹⁸.

Question: Must the stipulation be by mouth — verbally spoken?

Answer: From the plain meaning of the words of the poskim (who held regarding drinking that it depends on his intent), it appears that there is no need to stipulate by mouth, and it suffices that it be thus resolved in his thought¹⁹.

¹ פ"א ה"ד ↩

² תענית יב, ב ↩

³ תענית פ"א סי' יד ↩

⁴ הל' תעניות פ"א ה"ח ↩

⁵ סי' קיד ↩

⁶ הל' תעניות פ"א ה"ח ↩

⁷ וראה תוס' שבת קיח, א ↩

⁸ או"ח סי' תקסד ↩

⁹ רמז תרכו ↩

¹⁰ ראה רדב"ז ח"ד סי' רמז (אלף שיח) טעם אחר להקל בשתיה: 'שהשתייה הוא כדי להעביר המאכל שאכל בלילה וכאלו הוא צורך סעודת הלילה' ↩

¹¹ סי' סא ↩

¹² שו"ע או"ח הל' תענית סי' תקסד ס"א ↩

¹³ או"ח סי' תקסד ↩

¹⁴ ס"ק ג ↩

¹⁵ או"ח סי' תקסג ס"א ↩

¹⁶ סי' תקסד ס"ק ג ↩

¹⁷ ס"ק ו ↩

¹⁸ ולנהוגים כפי פסיקת מרן המחבר אין להם להקל לשתות ללא תנאי ↩

¹⁹ כך נראה גם מדברי הפוסקים שלא ציינו שיש צורך באמירה בפה דווקא וכ"כ הגר"מ אליהו הל' חגים פכ"ד סמ"ו שמספיק תנאי במחשבה. אמנם בשו"ת אור לציון ח"ג פל"א אות ב כתב: 'ובתענית ציבור יש להתנות דוקא בפה, ואין די שיחשוב בלבו'. וראה מ"ש שם בהערה ב ↩

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