What’s the Truth About . . .Counting a Minor with a Sefer Torah Toward a Minyan?

Misconception: Nine adult men plus a boy holding a sefer Torah constitute a minyan, thus enabling the recitation of prayers such as Kedushah and Kaddish.

Fact: A minyan is defined as ten adult male Jews. Whether a child can be counted is a long-standing controversy.

Background: The basic halachah (Shulchan Aruch, OC 55:1) is that a minyan for prayer1 consists of ten adult male Jews, with the requirement for ten being derived from an exegesis either regarding the ten spies2 (Megillah 23b) or the ten brothers of Yosef3 (Yerushalmi, Berachot 7:3; Bereishit Rabbah 91:3).

The Gemara (Berachot 47b-48a) presents a series of lenient rulings regarding the composition of zimun and minyan, and then concludes that the halachah does not accord with any of them. One of those lenient rulings is a statement by Rabbi Yehoshua ben Levi who maintains that even a baby in a crib can count as the tenth in a minyan. Tosafot (Berachot 48a, s.v. v’let hilchata) says that Rabbeinu Tam understood the Gemara’s conclusion to not apply to Rabbi Yehoshua ben Levi’s statement; thus even a baby boy can be counted as a tenth. Tosafot also mentions that some only count a child if he holds a sefer Torah, a suggestion that Rabbeinu Tam calls a “minhag shtut” (a foolish custom). Nonetheless, one of the ba’alei Tosafot known as the Ri says that in practice even Rabbeinu Tam did not count a minor for a minyan.

Throughout the period of the Rishonim, various opinions were expressed about the issue.4 According to the Rosh (Berachot, chap. 7:20), Rav Hai Gaon ruled that a minor can be counted, explaining that the Shechinah is present if there are ten male Jews, as long as nine are adults. The Tur (OC 55) mentions that some permit counting a child holding a chumash, but says that his father, the Rosh, insisted on only counting adults. Indeed, the Rosh (Berachot, chap. 7:20) explains that the erroneous notion of a child holding a Torah comes from a misapplication of a rule found in Pirkei D’Rabbi Eliezer (chap. 8) regarding the number of people involved in intercalating the year.5

The eleventh-century Machzor Vitry6 quotes his teacher, Rashi, as being opposed to counting a child holding a sefer Torah. However, he reports an instance when Rabbi Yitzchak ben Rav Yehudah, a teacher of Rashi’s, counted a child who was holding a chumash. The circa-fourteenth-century Kol Bo (Hilchot Tefillah, pp. 305-307 in Feldheim 5767 ed.) mentions that it is a widely accepted custom to include one, two, or in an emergency, even three boys who are old enough to know to Whom they are praying. But he also cites Maharam miRothenburg that a child is never counted, even when holding a sefer Torah. The Rambam (Hilchot Tefillah 8:4) makes no mention of including a child and rules simply that a minyan for prayer must consist of ten adult males.

The Shulchan Aruch (OC 55:4) mentions that there are those who permit counting a child older than six who knows to Whom he is davening.7 However, the Shulchan Aruch says that the great authorities reject this position. The Rema adds that for those who reject this opinion, whether or not the child is holding a chumash is irrelevant. The Rema then notes that there are those who are lenient in time of great need.

Commenting on the Rema, the Magen Avraham (55:5) says that the Levush did not know of such a custom. However, the Magen Avraham observes that in his time and place (seventeenth-century Poland), the practice was indeed to include a child holding a chumash.8 He limits this leniency to obligatory prayers only, thus excluding, for example, the recitation of Kaddish after Aleinu. Despite it being a minority opinion, it is this position of the Magen Avraham that is relied upon by those who include a child in a minyan.

The Aruch Hashulchan (OC 55:10) cites the various opinions and then rules in practice to never count a child. The Shulchan Aruch Harav (55:5) also cites both halachic positions.9 He rules that the primary position is to not count a child but states that one should not criticize those who are lenient in a “sha’at hadchak” (instance of great necessity) because they do have on what to rely. The Mishnah Berurah (55:24) quotes the Magen Avraham’s report of the prevailing custom, but says that many Acharonim10 maintain that even in extenuating circumstances, those under thirteen should not be counted.

Historically, it seems that the preference was to not count a minor, but in extenuating circumstances there were authorities willing to permit it. For example, the sixteenth-century Radbaz (8:11) was asked by a group of nine adult men and an eleven-year-old boy on a boat if they could daven as a minyan. He responded that it is a great debate and that although normally one should not count anyone under thirteen, as this is certainly an extenuating circumstance, they could rely on Rabbeinu Tam and include the child. Thus, for those willing to permit this in extenuating circumstances, the question becomes how to define “sha’at hadchak.”

Rabbi Aryeh Leib Frumkin (1845-1916) describes in detail11 the situation of the tiny Ashkenazi Perushi community in Jerusalem in the 1820s-30s, the remnant of the students of the Vilna Gaon who made aliyah to Tzfat and then Jerusalem. The community was so small that in order to make an Ashkenazi minyan, they would hire a Sephardi to complete their minyan, and sometimes they were forced to rely on a child holding a sefer.

Rabbi Shalom Mordechai Hacohen Schwadron (d. 1911; Shu”t Maharsham 3:162) was asked by a group from Hungary if they could create a new minyan consisting of nine men and a child holding a sefer Torah. They wanted to break off from the minyan they were attending because they felt it was leaning toward Reform Judaism. This great nineteenth-century posek deemed this a true emergency and, relying partially on Shu”t Min Hashamayim, ruled with the minority opinion that they could make the minyan, the child should hold a sefer Torah, and they should minimize optional instances of Kaddish.

Rav Moshe Feinstein (Iggerot Moshe 2:OC :18) was asked by a shul struggling to get a minyan if a child could be counted. He defines this as a sha’at hadchak even though there was another shul in the city because those congregants might not attend the other shul. He then acknowledges that whether to count a child is an old debate in which it is difficult to take a position.12 However, based on the Ran that the requirement for a minyan for davening is rabbinic, Rav Moshe was willing to rely on a minority opinion and permit counting a child, with several conditions and caveats. He prefers that the boy be twelve years old, and that he grasp the eitz chaim of a sefer Torah (even a pasul one) that is lying on the shulchan, as opposed to holding it. He also states that instead of reciting Chazarat Hashatz, the shaliach tzibbur should not pray a silent Shemoneh Esrei, but instead wait for everyone to finish theirs and then say his Shemoneh Esrei out loud (with Kedushah).

Rabbi Hershel Schachter reports (MiPninei Harav, 2001, p. 27) that in the early years of the Maimonides School—founded in 1937 in Roxbury, Massachusetts—they were short one for a minyan a few times, and Rav Yosef Dov Soloveitchik would rely on Rabbeinu Tam and count a child. Rav Soloveitchik would rebuff the suggestion that the child hold a chumash, because Tosafot calls it a minhag shtut. He instead suggested the child hold a siddur, which would enable him to daven better.

Rav Shlomo Zalman Auerbach (Halichot Shlomo, Tefillah 5:9) is quoted as not permitting counting a child even if it will lead to a minyan dissolving. That was also the opinion of Rav Yaakov Karliner (Shu”t Mishkenot Yaakov 72).

Rav Ovadiah Yosef (Yabia Omer 4: OC: 9) in a very lengthy responsum was strongly opposed to ever counting a minor for a minyan.13 He understood this to be the position of the Shulchan Aruch14 and saw no reason to deviate from the position of the Shulchan Aruch even when it came to small villages that would otherwise never have a minyan. In fact, he went so far as to quote the position of the Maharam miRothenburg that if one finds himself in a place of nine adults who are about to include a child as the tenth, he should leave so as not to enable this terrible travesty.

Rav Menashe Klein (Mishneh Halachot 4:8) was asked post facto about a case where someone walked out rather than participate in such a minyan, and he lauded that individual as having acted correctly. He also took issue with Rav Moshe’s definition of sha’at hadchak because in that instance there were other men in the town.

Rav Klein is against counting a minor, but says that if one thinks it legitimate, it must at least be a true sha’at hadchak, such as no possibility of a minyan in town at all. This is similar to the definition that Rav Dovid Tzvi Hoffmann (Melamed Leho’il, 1:OC:4), who is against counting a minor, quotes in the name of Shemen Hama’or—that a sha’at hadchak is such that in the entire village there is no way to have a minyan without including a child.

Rabbi Shraga Feivish Schneebalg (Shraga Hameir 7:76), in a responsum about counting a child as part of a minyan while in a vacation location, succinctly summarizes the halachic history and says it can be done b’sha’at hadchak. He then gives a poignant personal story describing how in 1941 the Russians occupied his town and exiled his family to a small neighboring village in which there was trouble getting a daily minyan. He was nine years old at the time, and the men gave him a chumash to hold and counted him for Barchu, Kedushah and Kaddish.

The question of counting a child toward a minyan has divided halachic authorities for at least a thousand years. The debate centers around several points: whether there must be extenuating circumstances and how to define such; whether the child may be counted at any age or only once he “knows to Whom we daven,” and/or at specific ages; and whether holding a sefer Torah or chumash gives the child additional standing. The issue continues to be the subject of heated debate until today, with each community following its posek.

Notes

1. Herein we are only discussing counting a child for a minyan for davening. In other areas of halachah, e.g., zimun, the rules for counting a child may be different. Rambam allows the tenth in zimun to be a child over seven years old (Hilchot Berachot 5:7). The Shulchan Aruch (OC 199:10) says that a child “who knows to Whom we bentch” counts for a zimun (of three or ten), and this is normative Sephardi pesak (Yechaveh Da’at 4:13). The Rema (OC 199:10) rejects this and rules that a child may never be counted for zimun, and that is the normative Ashkenazi position. Shu”t Maharsham (3:162) sees a seeming conflict between the rulings of the Rema in OC 55:4 (davening) and OC 199:10 (zimun) and explains why they differ. Rav Chaim David Halevi (Mayim Chaim:11, 5751) opines that Sephardim should also allow two women and a girl over six who understands to Whom she is bentching to form a zimun of three women. (On women’s zimun, see “What’s the Truth About …Women’s Zimun?,” Jewish Action 60:1 (fall 1999); (jewishaction.com/religion/whats-truth-aboutwomens-zimun/.)

2. The exegesis links Vayikra 22:32 with Bamidbar 16:21 and then with Bamidbar 14:27.

3. Connecting Vayikra 22:32 and Bereishit 42:5. Torah Temimah on Bereishit 42:5 (2) suggests that the Yerushalmi may have preferred this derashah because the exegesis involves two verses instead of three. Rabbi Akiva Eiger (Gilyon Hashas to Sotah 34a, Tosafot s.v. tortani) suggests another reason to prefer this derashah. The Gemara (Ketubot 7b) derives from other sources that ten are needed for sheva berachot, including Boaz seating ten elders when he married Rut (Rut 4:2). Another midrash (Bereishit Rabbah 49:13) assumes that Avraham’s plea that Sedom and its sister cities be spared in the merit of ten righteous people (Bereishit 18:32) refers to a minyan that could gather and pray on behalf of the doomed cities.

4. For an analysis of the early Ashkenaz sources, see Yisrael M. Ta’Shma, Hatefillah Ha’Ashkenazit Hakedumah, chap. 19 (Jerusalem, 2004).

5. Another source for this notion is found in Yerushalmi, Berachot 7:2 and Bereishit Rabbah 91:3.

6. Vol. 1, p. 136, in Rabbi Aryeh Goldschmidt, vol. 1 (Jerusalem, 5769).

7. Note that this differs from the position of Rabbeinu Tam and those who ruled like him and based themselves on Rabbi Yehoshua ben Levi, permitting even an infant.

8. Most commentators explain that the reference is not to a printed chumash, or even to a bound handwritten book of chumash, but rather to a handwritten scroll.

9. On (non-prayer) situations where women might count for a minyan, see Aryeh A. Frimer, “Women and Minyan,” Tradition 24:4 (summer 1989).

10. He was referring to Elya Rabbah, Pri Megadim, Derech HaChaim, Chayei Adam (Sha’ar Hatziyun 55:21).

11. Rabbi Frumkin’s description appears in Toldot Chachmei Yerushalayim (Jerusalem, 5689) vol. 3, p. 154, and in Ma’asaf Tzion (5687) vol. 2, p. 145. I thank Dr. Arie Morgenstern for providing these references. Regarding the aliyah of the talmidei HaGra, see the review of Dr. Morgenstern’s book in Jewish Action, winter 2008; jewishaction.com/books/two_hundred_years_in_eretz_yisrael_the_seminal_aliyah_of_the_talmidei_hagra/.

12. The Netziv (Meishiv Davar 1:9) also notes that all previous generations debated this point. Because it is such a long-standing debate, both sides, he claims, have legitimate halachic grounds upon which to rely. In his view, however, the correct thing to do is not to count a child in such a circumstance, and one should not feel badly about missing those parts of the tefillah that cannot be recited without a minyan since that is the halachah.

13. He also ruled against another “baseless minyan shortcut.” There are those who recite Kaddish at the gravesite of a tzaddik with nine people and count the tzaddik as the tenth, claming that this is based on a gemara (Berachot 18b) stating that a dead tzaddik is deemed alive (Yechaveh Da’at 6:5).

14. As part of his argument to permit counting a child (Yayin Hatov, OC 28), former Sephardi Chief Rabbi Yitzchak Nissim suggests that the Shulchan Aruch tends toward being lenient or would not even have mentioned that position. Rav Ovadiah disagrees (Yabia Omer 4:OC: 9 and 9:OC:103:5).

Rabbi Dr. Ari Z. Zivotofsky is a professor of neuroscience at Bar-Ilan University in Israel.

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This article was featured in the Winter 2021 issue of Jewish Action.
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