Moshe Kurtz
I. Help from the Heat
I am the kind of person who keeps a fan by his seat in shul, lest the air conditioning not be to my precise specification.[1] Several years ago I even purchased a portable fan which I activate before Shabbat, and it lasts the entire time on its lowest setting. In principle, I would always love to wear a suit throughout Shabbat. But the sum total of my undershirt, tzitzit, shirt, suit jacket, and tallit have generally all but guaranteed a degree of discomfort, unless the air conditioning is truly functioning at all times. As a Wall Street Journal columnist recently put it: “I run warm, I sleep warm, I sit warm, I stand warm, I think warm. Like a lost narwhal, or a determined fashion editor, I spend my life in a perpetual, frantic search of cool.”
To what degree does Judaism accommodate discomfort, and when does God simply demand that we persevere regardless? The Shulhan Arukh (O.C. 276:5) provides a significant halakhic dispensation for those suffering from the cold:
It is permitted for a Gentile to make a fire in cold countries for children, and adults are permitted to warm themselves thereby. It is even permitted to make a fire for adults when it is extremely cold, as everyone is considered ill vis-a-vis the cold (emphasis added). Unlike those that are accustomed to permit (lighting a fire) even when it is not an extremely cold day.
The Mishnah Berurah (ad loc. 40) elucidates that one may even explicitly instruct a gentile to kindle a flame, without the need for hinting.[2] On this basis, R. Moshe Feinstein (Responsa Iggerot Moshe, O.C. 3:42) ruled that one may also ask a non-Jew to activate the heat in one’s home. What remains unclear, however, is whether the same halakhic permission applies to providing relief for locations suffering from extreme heat. Tosafot (Bava Batra 144b) cite the Jerusalem Talmud (y. Sanhedrin 10:5)[3], which provides the following anecdote:
Antoninus came to Rebbi [before embarking on a journey]; he said to him, “Pray for me.” He said to him, “May He save you from the cold, as it is written: ‘who can withstand His cold?’” He said, “Is that not a superfluous prayer? You cover yourself with an outer garment and the cold will go away.” He said to him, “May He save you from the hot wind that comes into the world.” He said, “That is a prayer! May your prayer be heard, as it is written: ‘nothing is hidden from His heat.’”
The clear takeaway from this story is that while one can bundle up to protect themselves from the cold, it is far more difficult to find a solution for managing the heat. On this basis, Dayan Weiss, author of the Minhat Yitzhak (3:23), argued that if we permit asking a non-Jew to alleviate the cold on Shabbat, it certainly stands to reason that we may ask them to activate the air-conditioning as well.[4]
Another ramification of this Tosafot is that in shared spaces, such as a beit midrash or corporate workplace, the thermostat preference would be deferred to those who are sensitive to the heat since those who are easily chilled have the recourse to wear additional layers.[5]
It is also worth noting that sensitivity to the heat was taken seriously enough by Hazon Ish that R. Yitzchok Zilberstein reports (Hashukei Hemed, Sukkah 10b) that if one’s clothing causes him discomfort and detracts from his oneg shabbat (enjoyment of Shabbat), it would also constitute a deficiency in his kevod shabbat (honor of Shabbat). Thus, it would be permissible to wear less formal clothing on Shabbat if it would ease one’s discomfort from the heat and resultant perspiration.[6]
This ruling demonstrates that Halakhah not only addresses the community but at times can incorporate the idiosyncratic needs of the individual as well.
II. Istanis and the Individual Experience
Perhaps the most iconic instance of a dispensation for an individual experiencing an unusual level of discomfort appears in the Tractate Berakhot (16b):
Mishnah: [Rabban Gamliel] bathed on the first night after his wife died. His students said to him: “Have you not taught us, our teacher, that a mourner is prohibited to bathe?” [He answered them:] “I am not like other people; I am delicate [istanis]…” Gemara: …What is the reason of Rabban Gamliel: He holds that acute mourning at night is [only] by rabbinic law, as it is written: “…And the end will be like a bitter day” (Amos 8:10). And in the case of a delicate person, the Sages did not issue a decree…
The Sages held that an istanis[7] was excused from abiding by certain rabbinic strictures. What remains ambiguous, however, is whether this leniency for an istanis is a local matter exclusive to specific areas of Halakhah, such as the laws of mourning, or if it is a global principle that can be applied throughout the corpus of Jewish law.
Tosafot (ad loc., s.v. Istanis Ani) explain that an istanis is permitted to wash his body for the purpose of removing discomfort since the laws of mourning only restrict pleasurable bathing. Accordingly, there is no special dispensation for discomfort―rather, bathing with the intent to remove discomfort simply does not fall under the rubric of forbidden mourning activities.
R. Yosef Shalom Eliyashiv (ad loc., s.v. Akh), however, in elucidating the position of other medieval commentators, writes that the washing of an istanis still has a tzurat rehitzah, the status of actual bathing. This means that the washing of an istanis constitutes bona fide bathing, and the Sages still granted a leniency anyway! Accordingly, when the Gemara says, “And in the case of a delicate person, the Sages did not issue a decree,” it should be understood to mean that the Sages did not impose their strictures vis-a-vis an istanis in all areas of Jewish law.
These conflicting frameworks are also connected to a debate regarding the purpose of the mourner’s prohibition to bathe. Is the goal of mourning to generate distress or only to negate comfort?[8] For Tosafot, the purpose of the restrictions of mourning is only to negate enjoyment. It follows that since the goal of an istanis when he bathes is simply to remove discomfort, it is not classified as pleasure and is therefore categorically permissible. However, according to R. Eliyashiv’s approach, the goal of mourning is not simply to prevent enjoyment but to actively generate a degree of discomfort. It thus follows that it is only in the unique case of an istanis when the Sages permitted the rabbinic bathing restrictions to be superseded, since his discomfort exceeds the degree of discomfort that the law intended to generate. Accordingly, the dispensation for the istanis to bathe is not simply based on a factor within the laws of mourning. Rather, it is an independent halakhic category which conflicts with, and at times even supersedes, the laws of mourning.
If we grant that there exists a universal dispensation for delicate people throughout Jewish law, we are forced to confront the following questions: Why do we not find a more expansive implementation of exemptions for istanisim (plural for istanis)? Also, what are the actual parameters of this dispensation―just how far does Halakhah stretch to accommodate one’s sensitivities?
My thesis is that the reason the term istanis is not used as widely throughout the Talmud as one would expect is because it actually operates as a shapeshifter or stand-in for a variety of halakhic characterizations. There will be times that the term istanis will refer to a less severe form of discomfort, such as a meihush, and there will be times that it refers to one who is ill to the point that he cannot function―holeh she-ein bo sakanah―and will thereby qualify for more halakhic leeway (see Shulhan Arukh O.C. 328:1).[9] The reason for this is that istanis describes a person, whereas meihush or holeh describes an experience. Thus, one who is an istanis can experience different forms of distress which are addressed throughout halakhic literature.
Indeed there is an explicit connection between the concept of istanis and one who is mitzta’er (distressed) in the laws of Sukkah, which we shall investigate momentarily.
III. Salvation from the Sukkah
The Talmud (Pesahim 113b)[10] teaches that:
There are three [types of people] whose lives are not lives [due to their constant suffering]: The compassionate, the hot tempered, and the delicate.[11] Rav Yosef said: “All of these attributes are found in me.”[12]
The same Rav Yosef in the passage above self-identifies as an istanis in several other places[13] in which there are actual halakhic ramifications―most notably in Tractate Sukkah (29a):
Abaye was sitting before Rav Yosef in the sukkah. The wind blew and brought splinters [from the roofing, and they fell onto the food]. Rav Yosef said to him: “Vacate my vessels from here [and I will eat in the house].” Abaye said to him: “Didn’t we learn [in the Mishnah that one remains in the sukkah] until the congealed dish will spoil?” He said to him: “For me, since I am delicate, [this situation] is as if the congealed dish will spoil.”
Not only is there leeway for an istanis in the laws of mourning but also in the ostensibly unrelated laws of sukkah. The fact that we are yet again presented with a leniency for istanisim suggests that this may very well be a far-reaching halakhic category. In fact, Radvaz (responsum 2:687) extrapolates from the Halakhah―that one who is distressed may leave their sukkah―that one who is experiencing significant discomfort from their beard may shave during the period of sefirah.[14]
The Birkei Yosef (O.C. 472:10) and others[15] raise a glaring issue with Radvaz and for anyone who would wish to use the laws of sukkah as a paradigm for expanding the intrinsic halakhic power of the status of istanis. The normative understanding[16] of the principle of mitzta’er patur min ha-sukkah (one who is distressed is exempt from the sukkah) emerges from a built-in feature of the laws of sukkah called teshvu ke-ein taduru, in which our sukkot are treated like our homes. Hence, in the same way one would leave their home under significantly uncomfortable conditions, so too one may leave their sukkah. Accordingly, the permission for R. Yosef to leave the sukkah was not a result of an inherent halakhic status of being an istanis but rather a constrained expression of the principle of teshvu ke-ein taduru.[17] Accordingly, the case of R. Yosef leaving the sukkah should not be dispositive for other areas of Jewish law.[18]
In light of this, it is difficult to understand how Radvaz sought to expand the dispensation for distress beyond the sukkah to other areas of Halakhah. However, we may yet be able to glean such a dispensation from the adjacent laws of the four species. Rema (O.C. 656:1) writes:
Somebody who doesn’t have an etrog or some other [objected associated with a] mitzvah whose time will elapse need not dispense much wealth on it, as they said: “One who dispenses [money to charity] should not dispense more than one-fifth [of their wealth],”[19] even with respect to a mitzvah with a time that will elapse (Rosh, Rabbeinu Yeruham 13:2). This specifically applies to a positive mitzvah. However, regarding a negative mitzvah, one should spend all of their wealth rather than sin (Rashba and Ra’avad).
Binyan Shlomo (no. 47), based on Bava Kamma (93a), suggests that in the same way there is a cap on how much one is expected to sacrifice financially to fulfill a mitzvah, there is also a limit on how much one is psychologically expected to endure.[20] This framework could serve as the basis of Radvaz and as the basis for the principle of istanis throughout Torah law. So long as one is severely distressed by the performance of a particular biblical commandment, they would be exempt from performing it.[21]
IV. When Discomfort Becomes Dysfunction
As previously established, the status of istanis is amorphous and can at times refer to the experience of mitzta’er or meihush. However, there are instances in which it can rise to the level of a holeh she-ein bo sakanah, one who is unable to function (generally, but not exclusively, identifiable as being bedridden). Shulhan Arukh (Y.D. 262:2) equates one who experiences a ke’eiv gadol, excruciating pain, with one whose entire body has fallen ill and cannot function. This would perhaps allow for the disregarding of rabbinic prohibitions in order to alleviate the individual’s condition, though the precise parameters of this are beyond the scope of this essay.[22]
Earlier, I quoted the Gemara in Pesahim (113b), which taught that one who is overly merciful, easily incensed, or an istanis is considered not to be living. Rashbam (ad loc., s.v. Ha-rahmanin) elucidates:
And these three categories are something that constantly affects the individual every moment. And since he is particular about them, his life is not a life―for he has no reprieve.
Rashbam is describing a second, more acute status of istanis in which one is not temporarily mitza’er on an isolated occasion, but they are mitza’er tamid: they live a life of tza’ar (distress). Such a classification is not limited to specific practices of mourning or sukkot but is universally applicable.
To illustrate this, let us turn to the mitzvah of settling the Land of Israel. I would suggest that even if we grant Ramban’s position that there is a bona fide Biblical commandment to live in the Land of Israel nowadays,[23] for an istanis, the more arid climate in Israel could serve as a basis to remain living in a markedly colder region.
Firstly, I already established, based on the Binyan Shlomo, that one who suffers significant psychological distress would be exempt from fulfilling a positive Biblical commandment. It thus follows that one who lives in a significantly cooler region and would not be able to withstand the warmer climate in any area of the Land of Israel would be exempt, perhaps, even according to Ramban.[24]
However, there is a potential rebuttal to this theory that I wish to preempt. While the imperative to live in the Land of Israel is only a single mitzvah, it serves as a gateway to performing all of the mitzvot ha-teluyot ba-aretz, the many commandments that can only be fulfilled there. Therefore, we may be in need of a higher bar to exempt one from being halakhically compelled to move.
For a heat-sensitive person, to live in a hot climate means that they will not be able to function like other people. They will constantly be living their life around the mercy of the temperature, scampering from one patch of shade to the other, abstaining from normal activities in order to avoid blazing heat. And while the existence of air conditioning has indeed made it easier to live in hotter regions, it has also made many dependent upon it. This can make it more challenging when one is not sitting in a location that is equipped with it (particularly the regular need to travel outdoors).[25]
While one might argue that such an individual should just be expected to stay indoors all day, Minhat Yitzhak (ibid) argues that one is not expected to relocate due to the temperature―Halakhah evaluates a person based on the location they wish to remain in. Thus, the inability to go where others go, the lack of functionality, the relentless concern and unattainable reprieve, the inability to live a normal lifestyle―these all render such a person the truest sense of an istanis: not one who suffers from discomfort, but one who is incapacitated by dysfunction.[26]
Moreover, it is possible that such logic need not be limited to certain unique individuals but can be extrapolated to entire geographic areas. At the beginning of our discussion we quoted Shulhan Arukh, who ruled that “everyone is considered ill vis-a-vis the cold.” If we trace this idea back a few hundred years we find that Rabbeinu Yom Tov, as quoted in Maharam Mi-Rotenburg (responsum no. 351),[27] had a slightly different formulation: “all are considered istanisim vis-a-vis the cold.” Thus, an entire geographic area can qualify for the status of istanis from the cold.[28] A similar notion is found in the more recent Sefer Torat Shabbat (276:5): “Ki tash koheinu ve-ein anu yekholim lisbol kor klal―our strength has diminished, and we are no longer able to withstand the cold at all.” If we accept that the heat in some respects is more dire than the cold, it would follow that an entire geographic area could qualify for halakhic accommodations on account of the heat as well.[29]
V. Putting Istanis in Perspective
While we have reviewed the expansiveness of the status of istanis in Halakhah, it should not be taken as a carte blanche, get-out-of-jail-free card for religious observance.[30] There are times that the status of istanis simply has no halakhic bearing. Even if one is an authentic istanis, it does not necessarily mean that their distress will outweigh the other halakhic considerations at play. For instance, one cannot transgress a negative biblical commandment on the basis of being an istanis.[31] At most, such a person can refrain from performing a positive biblical commandment or disregard a rabbinic prohibition. Moreover, there are times that being an istanis can even present a stringency, such as in the case of washing after meals. Shulhan Arukh (O.C. 181:10)[32] rules that even according to those who do not wash their hands after a meal, an istanis, who is generally careful to maintain cleanliness, would nevertheless be obligated!
Additionally, Rema (O.C. 640:4), based on Tur,[33] points out that one cannot simply self-identify as an istanis.[34] Magen Avraham (O.C. 640:9) explains that the reason Rav Yosef could claim he was an istanis was that his general conduct made it well known to the public that he was sensitive in such situations. However, we should note that Binyan Shlomo (no. 47) does leave the door open for making a self-evaluation. He extrapolates from Yom Kippur, in which the Talmud (Yoma 83a) applies the verse “the heart knows the bitterness of its soul” (Proverbs 14:10), that one may self-diagnose themselves as ill, even for non-life threatening situations.[35]
Returning to my personal case, the people in my community are well aware that I walk around shul with a fan, and they have even made some good-natured jokes about how I cannot function in the heat. I make no pretense of hiding that I believe I qualify as an istanis, and the only uncertainty I have is whether I lean closer to the lower tier of discomfort or the higher level of dysfunctionality when experiencing significant heat conditions.
One final question I would like to raise is whether there is a positive Jewish value to be comfortable. There is an iconic Midrash Rabbah (Genesis Rabbah 84:3), which perhaps offers a clear answer:
Rav Aha said: “When the righteous sit in tranquility and desire to sit in tranquility in this world, the Satan comes and accuses, saying: ‘Is that which is set for (the righteous) in the World to Come not enough that they seek serenity in this world?’ Know that this is certainly the case. Our Forefather, Jacob, sought to dwell in serenity in this world, and the ‘Satan’ [difficulty, impediment] of Joseph clung itself to Jacob. ‘And Jacob dwelt … etc.’ (Genesis 37:1) [actually is connected to] ‘I had no repose, no quiet, no rest, and trouble came’ (Job 3:26)―I had no repose – from Esau; no quiet – from Laban; no rest – from Dinah; and trouble (lit. anger) came – the trouble of Joseph.”[36]
God did not put us in this world to experience immediate paradise. As the Talmud (Avodah Zarah 3a) expresses: “One who takes pains on Shabbat eve will eat on Shabbat, but one who did not take pains on the Shabbat eve―from where will he eat on Shabbat?” The purpose of the exemptions for an istanis is not to make life blissful and cozy, but to mitigate the particular circumstances which impede a person from being able to live a life of service to God. And to the extent that one is challenged by discomfort and is able to persevere, I am confident that lefum tza’ara agra, their reward will be commensurate with their increased exertion.[37]
[1] I would like to express gratitude to Rabbi David Fried and Ashley Stern Mintz for editing this essay and to Rabbi Yair Lichtman for his insights during the early stages. Translations for the Talmud, Midrash and Shulhan Arukh are adapted from Sefaria.org; the rest are my own.
[2] Naturally, the degree of cold depends on the circumstances (see Mishnah Berurah ad loc. 42 and Arukh Ha–Shulhan 276:12).
[3] Cf. Leviticus Rabbah Metzora (16:8).
[4] See also Rabbi Yonatan Rosensweig and Dr. Shmuel Harris’s work Nafshi Be-She’eilati (3:13). However, Piskei Teshuvot (276, fn. 135) provides a list of authorities who reject the comparison between cold and heat, thus forbidding asking a gentile to activate the air conditioner under uncomfortable circumstances.
[5] See Responsa Chevel Nahalato (19:41) for an expansive analysis of this point.
[6] This is also consistent with how Rashba rules in his responsa (5:3) that one is exempt from eating the third Shabbat meal if it will cause him distress. See, however, the comments of the Rahamim Le-Hayyim, ad loc., who cites the Zohar which says that one who neglects to eat the third Shabbat meal is not an authentic member of God’s people.
It should be noted that in these cases the leniency emerges from the parameters of oneg shabbat, as opposed to a general dispensation due to distress. Accordingly, it makes sense that R. Zilberstein did not go so far as to permit casual clothing at the synagogue since it would contravene the principle of kedushat beit ha-kenesset, the sanctity of the synagogue. However, we will make an argument for a general application of this principle shortly.
[7] The term istanis is likely connected to the Greek word ἀσθενής which connotes a similar meaning. See also Rambam’s commentary (ad loc.), Meiri (Berakhot 16b). Cf. the Mishnah in Yoma (3:5).
[8] See Radvaz on the Mishneh Torah (Hilkhot Avel 5:4), Semag (Negative Commandment no. 69), and Meromei Sadeh on Tosafot (Berakhot 16b, s.v. Istanis Ani).
[9] See also Rashba (Berakhot 16b, s.v. U-bemakom) and Penei Yehoshua on Tosafot (Berakhot 16b, s.v. Aninut lailah de-rabbanan), who discuss the degree of distress or illness that the istanis experiences.
[10] Cf. Kallah Rabbati (9:6).
[11] The term used here is aninei ha-da’at, which Tosafot (Bava Batra 23a, s.v. Le-didi) note is synonymous with the term istanis.
[12] See Ben Yehoyada and Petah Einayim (ad loc.) who provide several interpretations of R. Yosef’s remark. The first explanation provided by the latter is that R. Yosef was lamenting that in addition to being blind, which is also considered to be homiletically “dead,” he also had these three traits which further diminished his ability to live a functional life.
[13] In Bava Batra (22b-23a), R. Yosef again claims to be an aninei ha-da’at (synonymous with istanis)―this time with ramifications for the laws pertaining to neighborly disputes. See Shiurei Rabbi Shmuel (Bava Batra 23a), who explores whether this gemara represents an intrinsic dispensation for an istanis, or whether being an istanis is simply an indication of how such an individual feels in the case discussed.
[14] The Reiah Besamim commentary on Responsa Besamim Rosh (no. 94) reckons with the Responsa Yosef Ometz (no. 40), who interprets Radvaz as not making a broader statement about the implications of mitzta’er. See also Responsa Radvaz (3:435) regarding shnayim mikra.
[15] See Kovetz Shiurim (2:46) in which R. Elchonon Wasserman raises the same issue.
[16]See, for example, Tosafot (Sukkah 26a, s.v. Holkhei derakhim ba-yom) and Ritva (ad loc., s.v. Pirtzah).
[17] Interestingly, Binyan Shlomo also cites a suggestion that the logic behind mitza’er is that the fundamental mitzvah of joy on the holiday, which applies to both men and women and on all holidays, should supersede the less expansive mitzvah of dwelling in the sukkah. (See also Responsa Even Yisrael no. 37, which advances a similar argument to exempt one from eating matzah on Pesach.) However, Binyan Shlomo subsequently rejects this position by asserting that “even though one is in distress for a moment when performing this mitzvah, nonetheless he is elated to perform the commandments of His Master―and there is no greater joy a person can experience than that of fulfilling a mitzvah.”
[18] In fact there are actually sources which explicitly indicate that distress is not sufficient to exempt a person from fulfilling a mitzvah. The Talmud (Nedarim 49b) relates: “A certain [gentile] lady said to Rabbi Yehudah: ‘[How can one] teach and be a drunk?’ He said to her: ‘[I place my] integrity in the hands of this woman [and should no longer be deemed credible] if I ever taste [any wine] except kiddush, havdalah, and the four cups of Passover. And [after I drink those four cups] I tie my temples from Passover to Shavuot (as wine gave him a headache). Rather, my complexion is explained by the verse “A man’s wisdom makes his face to shine” (Ecclesiastes 8:1).’” Shulhan Arukh (O.C. 472:10) codifies the Responsa of the Rashba (1:238) who does not see Rabbi Yehudah’s conduct as an act of piety but as expected of all people: “One who doesn’t drink wine because it hurts him, or he detests it, must force himself to drink in order to fulfill the commandment of four cups.”; see Mishnah Berurah (472:35). Sha’ar Ha-Tziyyun (ad loc., 52), however, reasons that forcing oneself to consume four cups of wine when it is painful for him would be counterproductive to accomplishing the imperative of conducting oneself like a free person. Moreover, if one actually endangers himself it would constitute a mitzvah haba’ah ba-aveirah, an invalid mitzvah, since it was done through sin (see Responsa Minhat Yitzhak 4:102). For a further analysis regarding Pesach, see R. Tzvi Pesach Frank’s Sefer Mikra’ei Kodesh (Pesach, no. 163).
[20] Binyan Shlomo cites the Responsa Besamim Rosh (no. 94), a later work falsely attributed to the Rosh, as precedent. Eshel Avraham (O.C. 656) and Responsa Iggerot Moshe (O.C. 1:172) essentially concur with extrapolating the principle of al yevazbez yoter me-homesh. See R. Moshe Shternbuch (Teshuvot Ve-Hanhagot 1:302 and Moadim U-Zemanim Ha-Hadash 3:258), who also makes a similar extrapolation but introduces several qualifications.
[21] Interestingly, Or Zarua (Vol. 2, 6:1; Cf. Rema O.C. 404:1) takes matters a step further than Radvaz. Also making reference to the concept of mitzta’er patur min ha-sukkah, he rules that one who docked just before Shabbat may leave their ship, thereby crossing the tehum shabbat, in order to escape the extreme rain or heat. The Sefer Torat Ha-Sukkah (4:9) is absolutely taken aback by this leniency of Or Zarua. Even if one accepts Binyan Shlomo’s halakhic theory, that only permits one to passively refrain from fulfilling a positive mitzvah―not to outright, actively transgress a negative commandment, whether Biblical or rabbinic! In order to make sense of Or Zarua, I believe that we need to differentiate between two tiers of istanis. There is a lower threshold akin to mitza’er patur min ha-sukkah, which is built into the laws of mourning and sukkah respectively, and there is a more acute manifestation of distress―which results in dysfunction―that I believe serves as a basis for the more generalized application of the term. See fn. 26 for my resolution.
[22] The Shulhan Arukh (O.C. 328:17) records a significant debate within the medieval authorities to the extent that distress permits―and how it permits―disregarding certain restrictions. In the case of excruciating pain, Piskei Teshuvot (328:4, fn. 13), based on Mishnah Berurah (ad loc., no. 102), permits the direct violation of a rabbinic restriction by a Jew, even when it is not possible to use a shinui (i.e., perform in an abnormal manner).
[23] Commentary on the Torah (Numbers 33:53), cf. Ramban’s Strictures on the Book of Commandments (Omitted Commandment no. 4). Also note that this dispensation applies without having to rely on R. Moshe Feinstein, who maintained that moving to the Land of Israel was only a mitzvah kiyumit, a voluntary mitzvah (see Responsa Iggerot Moshe E.H. 1:102), and certainly according to Megillat Esther’s interpretation of Rambam (Omitted Commandments no. 4). For an overview of the topic, see R. Hershel Schachter’s article, “The Mitzvah of Yishuv Eretz Yisrael,” published in The Journal of Halacha and Contemporary Society, no. VIII.
[24] It should be pointed out that there are parts of the United States which have a hotter climate than northern Israel, so for some regions this distinction would not hold up.
[25] See Responsa Teshuvah Mi-Yirah (vol. 1, fn. 291), which addresses how the innovation of air conditioners changes the equation nowadays regarding leniencies for bathing to cool off during the Nine Days (as tentatively found in Responsa Mahari Berona, no. 12).
[26] Such acute distress or dysfunction is also the likely basis of Or Zarua (referenced earlier in fn. 21), who permitted breaking the rabbinic level tehum shabbat to escape the extreme elements. While he employs the term mitzta’er, he is referring to a much more acute level (i.e., a ke’eiv gadol). This level of istanis carries universal halakhic weight and would apply to various areas of Jewish law.
[27] This responsum is also cited in Responsa of the Tashbeitz (3:225), among other places.
[28] See also Mordekhai (Sukkah, no. 741; also cited in Hagahot Ashri, Sukkah 2:12), who exempts those who live in colder climates from sleeping in the sukkah. Also see the Jerusalem Talmud (y. Sukkah 2:10), which notes that “the same way we clear out [of the sukkah] due to the rain, we also [may leave] due to difficult heat and mosquitoes.” Also see Responsa Siah Nahum (p. 117) regarding how we have collectively become weaker and less able to fast, even on Tishah B’Av.
[29] For instance, R. Eliezer Melamed (Peninei Halakhah, Laws of Prayer 5:5) writes that men who live in communities in Israel that wear shorts due to the heat are not required to cover themselves with pants for prayer.
[30] There is a classic dispute between Rambam and Ramban (on Sefer Ha-Mitzvot, no. 5) regarding the Biblical obligation of prayer. The former holds that there is a once-a-day requirement, whereas the latter holds that it is only in an eit tzarah, a time of distress. Many recent rabbis were troubled by Ramban’s opinion and suggested that one should view every moment as an eit tzarah, as we are always in need of God’s compassion. I would caution against adopting a similar line of reasoning to regard every situation as an eit tzarah, which would be treated as an exigent circumstance (sha’at ha-dehak) and thereby automatically qualify for a lenient halakhic position.
[31] See, for example, the story of R. Yehudah Ha-Hassid cited in Responsa Minhat Elazar (2:48).
[32] See Responsa Ma’amar Mordekhai (2:18), who notes that women are more likely to fall under this classification than men. Following the same line of reasoning, Responsa Teshuvah Mi-Yirah (1:106, fn. 292) is more lenient on women washing themselves during the Nine Days. See also Yoma (30a) regarding an istanis and handwashing.
There are various instances in which the concept of istanis is employed or reckoned with throughout Halakhah that is beyond the scope of our discussion. A few examples: Responsa Pe’ulat Tzadik (3:37) addresses whether the shiur sevi’ah, the amount needed to satiate someone, would change for an istanis. In his Haggadah, R. Mordekhai Aharon Kraiger (p. 33) rules that an istanis can pour out the wine at the seder instead of using his fingers.
[33] Tur codified here bases his ruling on Rav Hai Gaon, who is cited by other medieval works. See, for example, Rashba on Berakhot (16b).
[34] While not explicitly formulated, the concern potentially emerges from mar’it ayin (appearance of misconduct). Thus the Shitah Lo Nodah Le-Mi, cited in the Shitah Mekubetzet (Bava Batra 23a), suggests that a reputable and honest person would be entrusted to self-diagnose himself as an istanis.
[35] See also Responsa Be-Ohalah Shel Torah (2:92), which concurs with Binyan Shlomo.
[36] My thanks to R. Yisrael Friedberg for suggesting this connection to me.
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