Is This Mishna Brurah Being Misread?

The Controversial Mishna Brurah Ruling

The Mishna Brurah (672:11) states that if one arrive home before alos hashachar – and all are asleep – he should awaken family – in order to fulfill the Mitzvah with a bracha. Some cite this as proof to the importance of this Mitzvah that it even eclipses the concern for the sleep of others. But is this truly the case?

The Chofetz Chaim’s View

A story is told of Rav Elchanan Wasserman zt”l who asked the Chofetz Chaim zt”l whether it was permitted to awaken Rav Moshe Londinsky zt”l in order to recite Kiddush Levanah. The Chofetz Chaim looked at him incredulously and said, “And wake up a human being?? Are you normal?” Rav Elchonon Wasserman would repeat the story often (See M’archei Lev Vol. I p. 267).

Pshatim

Rav Yaakov Zev Smith shlita (HaMesivta 5781 p. 423) writes that perhaps the difference is because it is part of their Mitzvah as well on account of Ner Ish uBaiso – whereas regarding that particular Kiddush Levanah it was not the last time. Rav Yehudah Chesner in his Shaarei Yemei HaChanukah writes that the scenario was likely that he knows that they would not mind or that they had previously given him permission to do so. Perhaps the more likely scenario is that they had not yet fulfilled the Mitzvah themselves.

The Debate on Gezel Sheina

In Ashrei HaIsh, we find a debate between Rav Elyashiv zt”l and his son-in-law Rav Chaim Kanievsky zt”l. Rav Elyashiv maintains that just like there is such a thing as stealing air – there is such a thing as stealing sleep (Kum Hishlaich BaAretz p. 299), as opposed to the view of his son in law, Rav Chaim Kanievsky that Gezel Sheina is an invention of the Batei Midrashim of the Baalei Mussar.

The Chofetz Chaim’s Additional Perspective

It is further said in the name of the Chofetz Chaim that the worst type of theft is “Gezel Shaina” the stealing of sleep. His reason? It is one of the few forms of “theft” in which restitution can never be made.

Torah Sources

One might suggest that there are, in fact, two biblical violations at play here. The first one is the abnegation of the positive commandment to love your neighbor. “VeAhavta lerayacha Kamocha” dictates that we not go about waking people up at night. Another possible prohibition is found in the twenty fifth chapter of Vayikra, verse 17: Lo sonu ish es rayahu – You shall not therefore oppress one another; but you shall fear Hashem: for I am Hashem your G-d. Indeed, in the responsa book entitled Keren LeDovid (Orech Chaim section responsa #18), this exact verse is cited as the biblical basis for the prohibition of waking someone up improperly.

Community Standards and Practical Applications T

he criterion should be based upon the accepted practice in that community. In a country where it is the accepted practice to fiesta in the middle of the day (in Eretz Yisroel, by the way, many people actually nap between two in the afternoon and four o’clock PM) it would seem that one should not be playing music loudly in an area where sleeping people can hear it. The Ramban in the tractate Avodah Zarah discusses that varying countries may have different social mores as to what constitutes male dress and female dress.

Modern Day Applications

The issue comes up often when a builder (or even a Yeshiva) embarks upon a construction project. At what time in the morning is okay to begin work? Who also is the one in actual violation of these prohibitions? In the case of a Yeshiva, is it the person in charge of the Yeshiva or is it the administrator who is handling it? How about the contractors themselves? On the other hand, if a person sleeps until nine AM and demands that the Yeshiva not do any work beforehand, it is possible that that person is in violation of oppressing the Yeshiva.

Conclusion

The issue seems to be a matter of debate. It seems, however, that the background stories of what the Chofetz Chaim said and felt should inform our reading of this Mishna Brurah.

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