Bikur Cholim via Telephone: Technique vs. “Tachlis”


Vayeira 5780


“Hashem appeared to him in the plains of Mamre while he was sitting at the entrance of the tent in the heat of the day.” (Bereishis 18:1)

Rashi explains that Hashem appeared to Avraham for the purposes of Bikur Cholim as it was the third day following his Bris Mila.

Bikur CholimMin haTorah or mid’Rabbanan

Is Bikur Cholim a Mitzva Min haTorah? This is a well-known dispute between the Rambam and the Ramban. The Rambam (Hilchos Eivel 14:1) describes it as a “Mitzvas Asei m’Divreihem”, in other words a d’Rabbanan, but the Ramban (Hasagos, Sefer ha’Mitzvos Shoresh Alef) and Ba’al Halachos Gedolos (Asei 36) maintain that it is a d’Oraisa.

The Gemara in Sotah (14a) states:

“You shall follow Hashem your G-d”. Is it possible for a person to follow the Divine Presence? Surely [not, as] it says, “For Hashem your G-d is a devouring fire”?! Rather, [the intent of the verse is] to follow the traits of Hashem – just as Hashem visits the sick, as it says “And Hashem appeared to him in the plains of Mamre”, so shall you visit the sick.

This Gemara implies that Bikur Cholim is a Mitzva Min haTorah. However, this does not necessarily refute the Rambam’s position who clearly writes that the basis of the Mitzva is v’Ohavta l’Reiacha Kamocha. According to the Rambam, it was the Chachamim who determined that Bikur Cholim was a Mitzva in its own right. The Gemara only meant to praise the act of Bikur Cholim, not to identify it as a Mitzva d’Oraisa in its own right[1].

However, haGaon Rav Asher Weiss Shlita cites a Medrash haGadol in this week’s Parsha that clearly implies that Bikur Cholim is indeed a Mitzva d’Oraisa:

That day was the third day since his (Avraham’s) Bris Mila, and he was greatly in pain. Hashem said to the ministering angels, “Let us visit Avraham”. From here we see that Bikur Cholim is great before Hashem, and thus derive that Bikur Cholim is [a Mitzva] Min haTorah.

 

The “Tachlis” of the Mitzva Versus the Manner in Which it is Carried Out

Every Mitzva, whether d’Oraisa or d’Rabbanan, has both a method through which it is usually fulfilled – the “Ma’aseh haMitzva” – and a “Tachlis” that it is designed to fulfill. “Tachlis” does not refer to the “purpose” or “reason” for the Mitzva (in terms of its spiritual, ethical, or social benefits), but to the outcome and effect that define the Mitzva.

This notion can be explained using the example of the Mitzva of Sukkah. Simply put, the Mitzva of Sukkah requires dwelling in a walled structure with Kosher Schach. The walls can be made of any material, but if a person were to merely break open the roof of his house and place Schach in the gap, he would not fulfill his obligation. The Torah says, “You shall dwell in Sukkos for seven days” from which we learn that the Tachlis of the Mitzva is to live in the Sukkah the way that one would live in his own house. Therefore, one must leave his house to fulfill the Mitzva. For the same reason, a Sukkah must be a temporary structure (a Sukkah that is so tall that it would warrant permanent (i.e., strong) foundations is invalid).

This concept is not the reason for the Mitzva – it does not explain why the Torah commanded us to dwell in Sukkos, and it does not describe any benefits that the Mitzva brings about. In fact, the reason for the Mitzva is explicitly stated in the following Possuk“In order that your generations will know that I housed the Jewish people in Sukkos when I took them out of the land of Egypt”. When we speak of the “Tachlis of the Mitzva” we refer to the definition of the nature of the Mitzva.

Returning to Bikur Cholim. We began by saying that “Every Mitzva has a method which is usually implemented to carry it out – the “Ma’aseh ha’Mitzva” and a purpose that it is designed to fulfill”. Regarding Bikur Cholim there is a fascinating discussion as to whether one may perform the Mitzva in a different manner if it still fulfills the stated purpose.

The Tur (Y.D. 335) outlines the purposes of Bikur Cholim:[2]

When a person takes ill, it is a Mitzva for everyone to visit him…visiting the ill is a great Mitzva, as visiting will lead to:

 

  1. Davening for the patient
  2. Inquiring about his condition and attending to his medical and personal needs
  3. Cleaning and sanitizing his room and area
  4. Taking away “1/60th” of his illness

 

The Tur also mentions that one should not visit if it will cause embarrassment or stress (for example, if he is suffering from an embarrassing condition such as one requiring a urinary catheter or ostomy), or if it will cause him to become overly emotional or excited. In those cases, one should only go and inquire about his condition to see if there are any unmet needs and to be inspired to Daven for him without entering his room.

The Beis Yosef (ad loc.) cites the Ramban (Shaar Hamichush, Toras haAdam p17) who also emphasizes that the purpose of the Mitzva of Bikur Cholim is to clean for the sick person and attend to his needs, to provide social engagement, and to inspire the visitor to Daven for him.

In other words, the Mitzva of Bikur Cholim is intended to fulfill a certain Tachlis. This  is not the reason for the Mitzva but its definition. If someone visits a sick person for a brief time but does not concern himself with his medical or general needs, does not attempt to lift his spirits, and does not Daven for him, he has not accomplished the Tachlis of the Mitzva. By contrast, somebody who does concern himself with these matters has fulfilled the Mitzva in its fullest sense.

What about fulfilling the Mitzva of Bikur Cholim in another manner – realizing the Tachlis of the Mitzva without actually visiting the patient?

Rav Moshe Feinstein zt”l (Igros Moshe Y.D. 1:223) discusses whether one may fulfill Bikur Cholim on the telephone. Rav Moshe contends that it depends upon the various reasons outlined by the Poskim for the Mitzva (see the Tur and Beis Yosef cited above). If the Tachlis is to encourage the visitor to Daven for the patient or to encourage him and lift his spirits, this can also be achieved on the phone, but if it is to see to his needs, one would obviously need to visit in person.

We should point out that a person would certainly not fulfill the Mitzva merely by reading a patient’s medical chart[3] or inquiring after his condition, even though that may inspire him to Daven for him. Similarly, a person who organizes groups of people to lift a patient’s spirits, does not fulfill the Mitzva himself. Rav Moshe only discussed the question of Bikur Cholim on the telephone because the conversation is a direct interaction with the patient.

In any case, we can certainly see that if the purposes of a Mitzva are achieved through a different method then that is satisfactory according to Rav Moshe.

Rav Asher Weiss Shlit”a discusses the implication of this ruling of Rav Moshe, and disagrees:

In my opinion, it is clear that one would certainly not fulfill the Mitzva on the telephone. For even though one may lift the patient’s spirits on the phone, the Chachamim said that one needs to “visit the sick”. Therefore, it is only possible to fulfill this Mitzva through an actual visit and not through a phone call. A person needs to fulfill the Mitzvos of the Torah and the enactments of Chaza”l as they are described not just by following the reasoning.

 

I have written similarly elsewhere, regarding the Kinyan (method of acquisition) of Ma’amad Shlashtan (an assembly of the buyer, seller and third party). The Gemara in Gittin (13a) asserts that there is no logic to this Kinyan – it is a “Hilchasa b’Lo Ta’ama” (a Halacha without a reason). The Sefer Shu”t Devar Yehoshua contends that a three-way telephone call between the three parties is also effective, but, in my opinion, it is obvious that one may not change the form of the method that Chaza”l instituted based on its deeper reasons. Therefore, even if there is no logical difference, one cannot make an acquisition over the phone as the requirement is for an actual “Ma’amad Shlashtan” in which all three parties are situated in one place.

 

Therefore, even if one would fulfill all three of the reasons, he would not fulfill the Mitzva of Bikur Cholim over the phone. It would only be a simple act of Gemilas Chasadim, and while it is certainly worthwhile (because of the kindness of the act) when one is unable to do the Mitzva of visiting the patient because of the kindness it involves, it is not the actual Mitzva of Bikur Cholim.

 

This is a very extensive topic that encompasses much more than just the Mitzva of Bikur Cholim. We will just make mention of several interesting points to consider.

One could possibly distinguish between Mitzvos Bein Adam laMakom (between man and Hashem) and Mitzvos Bein Adam laChavero (between men) in this regard. As mentioned above, in every Mitzva there is a reason (from which one may not deduce any Halachic conclusions), a basic concept and definition, and the regular manner in which it is performed.

Perhaps we could further distinguish between Mitzvos in which the Tachlis is the Ma’aseh haMitzva itself and the Mitzvos in which the Tachlis is the outcome[4]. If the Tachlis is the Ma’aseh haMitzva, it would be less likely that one could fulfill it in another manner, even if the desired outcome is achieved. However, if the Tachlis is the outcome, one could argue that the Mitzva could be fulfilled in another way, as long as the desired outcome is met. It is possible that Mitzvos Bein Adam laChavero could generally be considered of the latter sort.

[1] This same reasoning can be offered to explain several other Gemaros that imply that Bikur Cholim is a Mitzva Min haTorah. (See Bava Metzia 30b & Nedarim 39b.)

[2] See our essay on Parshas Re’eh where we discussed whether a doctor fulfills the Mitzva of Bikur Cholim when seeing patients.

[3] Obviously, this refers to a doctor or other member of the medical staff who has a legitimate reason to access the patient’s record for treatment purposes

[4] There is, for example, a dispute among the Rishonim as to whether the Mitzva of Bris Mila is to perform a circumcision or to ensure the outcome that the person becomes circumcised.


Rabbi Yossi Sprung

Rabbi Yossi Sprung

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