6. Who Can Be Counted in a Minyan?
A minyan is a gathering of ten male Jews of sound mind and responsibility to join together for matters of sanctity. A minor, who is not yet of full sound mind and competence, does not count as part of the minyan. When he reaches the age at which he is obligated to fulfill the mitzvot (bar mitzvah), he is counted as part of the minyan.
There are some Rishonim who maintain that in extenuating circumstances (b’sha’at hadchak), nine adults may include a minor who is holding a Chumash in his hand as part of their minyan. However, in the opinion of most poskim, even in extenuating circumstances, a minor may not be considered part of the minyan, and that is how we practice. Nevertheless, in a situation in which the minyan will be canceled completely unless he is counted, possibly causing some of the members to distance themselves from Judaism, he can be counted as part of the minyan.7
Similarly, a shoteh (deranged person), who is not of sound mind – for example, one who takes off his clothes and ruins them – cannot be counted as part of a minyan. Regarding one who temporarily loses his sanity but afterwards returns to his senses, when he loses his sanity – he cannot be included as part of the minyan and when he regains his sanity – he may be counted (Chagigah 3b; Bei’ur Halachah 55:8). Likewise, one who is drunk like Lot, and does not know what is being done to him, may not be included in a minyan. L'chatchilah, it is preferable not to count a drunken person who is incapable of speaking before the King as part of the minyan (Kaf HaChaim 55:14; and see further in this book 5:11).
Since a person who is deaf-mute does not have a way of communicating with the world, the Chachamim say that he is considered a shoteh and he is exempt from fulfilling the mitzvot. Therefore, he may not be counted as part of the minyan (Chagigah 2b; Shulchan Aruch 55:8). The poskim disagree as to whether or not the status of a deaf-mute person changes, if he was taught to communicate with his surroundings, either by sign language or by reading and writing. Since joining a minyan is a rabbinic mitzvah, the halachah follows those poskim who are lenient, and therefore he may be counted in a minyan.8
7. Is a Person Praying the Amidah Counted as Part of the Minyan?
To comprise a minyan, it is not necessary for all ten men to be able to participate in saying the matters of sanctity. Even when a few of those participating cannot respond to the chazan, they still complete the minyan. For example, if a few of them have not yet finished reciting the Amidah of Ma’ariv, even though they cannot respond to Kaddish and Barchu, the Shechinah dwells among them because there are ten Jews present. As a result, they are permitted to recite matters of sanctity. Likewise, a deaf person who does not hear the chazan, or a mute person who cannot respond, can each still complete a minyan. There must be at least five people present who answer the chazan, since together with the chazan, they make up a majority.
In the opinion of some prominent Acharonim, the ruling that even one who cannot answer may be counted as part of the minyan refers to Kaddish and other matters of sanctity. However, regarding Chazarat HaShatz, it is necessary to have nine people who will actually answer Amen to the chazan, for without nine, his berachot will be in vain (Shulchan Aruch HaRav 55:7; Ben Ish Chai, Vayechi 6). Nonetheless, according to many poskim, although l'chatchilah it is necessary that nine people answer Amen to Chazarat HaShatz, in principle, even those who do not answer Amen count, and the chazan may start Chazarat HaShatz even before all nine have finished praying. Similarly, it is permitted to repeat the Amidah in a minyan in which people regularly engage in idle chatter during Chazarat HaShatz, even if there might not be nine people answering Amen to the berachot, since b’dieved even those who do not answer still count as part of the minyan (Magen Avraham; Eliyah Rabbah).
In order to avoid uncertainty, in a place where many people chatter and there is concern that there will not be nine people answering Amen to the chazan when he repeats the Amidah, the chazan should stipulate in his heart that if the ruling is according to those who maintain that nine people are needed to answer, then his Chazarat HaShatz will be considered a voluntary prayer (tefillat nedavah). Since a person is permitted to pray a voluntary prayer, according to all opinions his berachot will not be in vain (Mishnah Berurah 124:19).9
8. Counting a Non-Religious Jew as Part of the Minyan
A Jew who has sinned, for example, by eating forbidden foods, committing adultery, or transgressing other biblical commandments, is still counted as part of the minyan. Despite the fact that he sinned, in his inner core he surely desires to be a part of the holy objectives of Am Yisrael. As the Chachamim say (Sanhedrin 44a), "A Jew, even one who has sinned, is still a Jew." However, a person who sins in order to purposely incite God’s wrath does not count as part of a minyan, since he himself demonstrates that he does not belong to the Torah or to Israel (Mishnah Berurah 55:46-47).
According to some poskim, one who desecrates the Shabbat in public, even if he does it for his own pleasure, is considered an idol worshiper and does not count as part of the minyan (Mishnah Berurah 55:46). However, in recent generations, a few prominent poskim have taught that if a person who desecrates the Shabbat wants to be part of a minyan, we can include him. This is because today, the status of one who desecrates the Shabbat is different. In the past, when all of Israel observed the Shabbat, anyone who dared to publicly desecrate the Shabbat, even if he did it for his own pleasure, outwardly defied all of Israel and was therefore deemed as one who sins intentionally to arouse anger. However, in recent times, when unfortunately many Jews do not keep the Shabbat, its observance is not a measure of a Jew’s identification with his heritage, and therefore, if he himself wants to be part of the minyan, he may be counted. Still, it is not proper to appoint him as chazan.10
9. How Is a Person Counted in a Minyan?
As we have learned, a minyan is a gathering of ten Jewish males who are of sound mind. In order for them to join as a minyan, they must be together in one place. If nine of them are in the synagogue and one is outside or in an adjacent room, they are not considered a minyan. If the person outside the synagogue is standing next to the door or window, and his face is visible, according to most poskim he can be counted as part of the minyan, because their eye contact unites them. It is not necessary for everyone to see him, rather it is sufficient for only some to see him. Nevertheless, there are poskim who maintain that eye contact cannot be used to link a person to a minyan, and only if he inserts his head into the window will he be considered present with them and thus be counted in the minyan. L'chatchilah, we are to be stringent about this, but in extenuating circumstances, when he cannot come inside and join them, we may rely on most poskim who are lenient and count him as long as his face is visible.11
Someone whose face is not visible to those praying inside the synagogue, but is in the ancillary room of the synagogue, does not complete the minyan. Even so, if a minyan already exists without him, when he prays with them he is considered to be praying in a minyan.12
Ten people who are standing in a field, as long as they can see and hear one another, are considered a minyan (Minchat Yitzchak 2:44).
When there is a minyan of ten inside the synagogue, anyone who hears the chazan may respond. For instance, a sick person who is bedridden and hears the congregation’s prayers from his house, though he is not regarded as one who is praying in a minyan, he may answer Amen, since not even a steel barrier can separate a Jew from the Shechinah that dwells with the minyan (Shulchan Aruch 55:20). Similarly, if he hears the sound of the shofar blowing or the megillah reading from the synagogue, he can have kavanah to fulfill the mitzvah by hearing it.
A person who hears a chazan via a live broadcast on the radio or television may answer Amen after him. However, he cannot fulfill his obligation by listening to the megillah reading on the radio or television, because he is not hearing the actual voice of the chazan himself.13
In summary, there are four levels of joining together for matters of sanctity: 1. When a person is situated in the same place as the people praying or he is visible to them (according to most poskim) he can complete a minyan. 2. A person who is in the ancillary room of the synagogue but is not visible to the people praying cannot complete the minyan. If, however, there is a minyan without him, he is considered to be praying in a minyan. 3. One who is in a different room or outside the synagogue is not considered praying in a minyan, but may fulfill his obligation by hearing the chazan. 4.
One who hears the chazan on the radio may answer Amen, but cannot fulfill his obligation by hearing him.
10. A Diminished Minyan
When the recital of Kaddish in a minyan has begun, and a few men leave in the middle, if most of the minyan remains (at least six including the chazan) the Kaddish may be completed. This rule applies to all prayers that require a minyan; if they started to pray with ten people and most of the minyan remained, they conclude the prayer that they started, but do not begin a new prayer (Shulchan Aruch 55:2). It is prohibited to walk out and disband the minyan in the middle of matters of sanctity. However, in situations in which it is necessary, one is permitted to leave before the start of the next part of the prayers.
If a minyan began Chazarat HaShatz, and part of the minyan left but most remained, those remaining may say Kedushah and conclude the repetition of the Amidah. However, they do not say Birkat Kohanim because it is a mitzvah by itself. Concerning Kaddish Titkabal after the prayer service, the poskim are divided. The Sephardic custom is not to recite it since it is considered to be the start of a new prayer. According to the Ashkenazic custom it is considered to be the end of the prayer service because in it, we ask that our prayers be accepted. Therefore, in Shacharit and Minchah, if there are ten men at the start of Chazarat HaShatz, they may recite Kaddish Titkabal. (In Shacharit they also recite the Half Kaddish before Ashrei.) In Ma’ariv, if there is a minyan at the beginning of the silent Shemoneh Esrei and six men remain, they recite Kaddish Titkabal (Shulchan Aruch 55:3; Mishnah Berurah there).
7 The Amora’im are divided as to whether or not a minor may be counted as part of the minyan. The Rishonim dispute this as well, as brought in the Beit Yosef, Orach Chaim 55:4. The overwhelming majority of the Rishonim, including the Rambam, Ramban, Rashba, and Rosh, write that he may not be counted. However, Rabbeinu Tam, the Razah, and others write that we may be lenient in extenuating circumstances. Yabia Omer, part 4, 9, summarizes the issue and concludes that it is prohibited for a minor to be included even in extenuating circumstances. Nonetheless, the Maharsham, responsa 3:164, and Igrot Moshe, Orach Chaim, part 2, 18, permit it in extenuating circumstances because the law of prayer in a minyan is rabbinic and in certain situations we can rely on a minority of poskim.
The definition of an adult is one who has reached thirteen years of age and two hairs have grown in. Yet, practically we are not strict about this because praying in a minyan is a rabbinic obligation and we rely on the presumption that he has two hairs. Even if in actuality he does not, perhaps he did and they shed. See Mishnah Berurah 55, passages 31 and 40.
8 According to the Tzemach Tzedek 73 and Divrei Chaim, part 2, Even HaEzer, 72, even if the deaf-mute is a very wise person, he is exempt from the mitzvot. According to Maharsham, part 2, 140, and Nachalat Tzvi, he is considered a competent person for all intents and purposes. A few Acharonim write that because minyan is a rabbinic ruling, we may rely on those who are lenient and count him, as it is written in the responsa of Nachalat Binyamin 31 and Yechaveh Da’at 2:6. In a minyan of this kind, it is better not to have the chazan repeat the Amidah, for some poskim maintain that if there are not nine people answering, the berachot are close to being in vain. See further on this topic in Nishmat Avraham, Orach Chaim 1, 55:2, and Encyclopedia of Jewish Medical Ethics, entry "deafness." Additionally, if the person who is deaf-mute was taught to make sounds that are comprehensible to most people, according to all opinions, he may be counted in a minyan (Halichot Shlomo 22:26).
9 At first glance it seems that there is a contradiction in what the Shulchan Aruch writes, for in section 55:6-8, he rules that a person who is praying, a person who is sleeping, and a deaf person are also counted in a minyan, despite the fact that they cannot answer Amen after the chazan. Whereas in section 124:4, he writes based on the Rosh, "And if there are not nine people who have kavanah during the chazan’s recital of berachot, his berachot are close to being said in vain." In the opinion of most poskim, among them Magen Avraham, Derishah, and others, even those who cannot respond to the chazan are counted as part of the minyan. Therefore the Shulchan Aruch emphasizes "are close to being," meaning that in actuality his berachot are not said in vain. That is what is implied from the Beit Yosef in section 55 who brings the words of the Maharil and the Ram, maintaining that a person who is sleeping and someone who is praying can be counted for Chazarat HaShatz. (There disagreement is about how many people that do not actually answer can be counted. The most lenient opinion allows up to four. Regarding one who is sleeping, we may not be lenient with more than one, Mishnah Berurah 55:32.)
In contrast to them, the Taz 55:4 and 124:2 is inclined to say that only those who answer are counted in the minyan. The Graz 55:7 and Ben Ish Chai, Vayechi 6, differentiate between all the matters of sanctity about which the Shulchan Aruch writes in section 55 that even one who does not answer counts, and Chazarat HaShatz about which the Shulchan Aruch writes in section 124 that it is necessary to have nine people answer.
In extenuating circumstances, when there are people who extend their prayers and it is difficult to wait for them to finish, it is possible to heed the advice of the Mishnah Berurah 124:19 – that the chazan stipulates that if the ruling is according to those who maintain that it is necessary for nine people to answer, then his prayer is considered a voluntary prayer (tefillat nedavah). In the Musaf prayer and Shabbat and festival prayers, the chazan cannot make this stipulation because on Shabbat and festivals a voluntary prayer may not be recited. Instead, when he is concerned that nine people will not respond to him, either he should rely on the majority of poskim who say there is no need to have nine people answer or he should not pray the silent Amidah with them and this way he can recite the Amidah repetition without doubt, for he himself is fulfilling his obligation through this prayer.
On weekdays, when the minyan is smaller, we can rely on the advice given further in this book (19:5) that the minyan may pray the abridged Chazarat HaShatz and the chazan recites the first three berachot out loud in order to say Kedushah.
According to almost all opinions, a person who prays word for word with the chazan is counted as part of the minyan even though he does not answer Amen.
10 Melamed L'hoil, Orach Chaim 29 and Binyan Tziyon HaChadashot 23 rule to count a person who desecrates the Shabbat as part of a minyan. That is also how my teacher and rabbi, Rav Avraham Elkanah Shapira, ztz"l, ruled in practice. The foundation for their rationale is brought in Igrot Ra’ayah, part 1, 138, that the atmosphere of these generations entices people to sin almost against their will and therefore, sinners today are considered nearly annusim. Similarly, the Chazon Ish, Orach Chaim 87:14 and Yoreh De’ah 2:28, writes that most non-religious Jews have the status of tinok shenishbah (a child who was captured and raised among gentiles) and not mumar lehachis (a sinner who intentionally defies the Torah). Many other Acharonim have also dealt with this issue. There are those who are stringent, see Ishei Yisrael 15:16. Nevertheless, we have already learned that prayer in a minyan is a rabbinic ruling and the halachah goes according to those who are lenient.
11 It is implied in the Shulchan Aruch 55:14, that anyone who is visible, even if he is in a different domain, can be counted. That is what the Beit Yosef says in the name of Orchot Chaim who quotes Rav Hai Gaon and the Rashba. Additionally, it is enough that a few of them can see him, as is clarified in the ruling of zimun (literally, invitation, three people blessing Birkat HaMazon together) Orach Chaim 195:1. However, the Sheyarei Knesset HaGedolah, Hagahot on the Beit Yosef 6, writes that according to the Shulchan Aruch, only if he brings his face into the space of the window can he be counted. So it is written in Kaf HaChaim 55:70, based on some Acharonim. The Mishnah Berurah 55:52 essentially rules according to the lenient opinion, and therefore, one who prays in the women’s section, if his face is visible, is counted as part of the minyan. However, he writes that l'chatchilah it is good to follow the stringent opinion, and hence it is better that he actually enter the synagogue in order to complete the minyan.
12 The Mishnah Berurah 55:58 writes, based on the Radbaz, that one who prays in a room in which the only entrance is through the synagogue, even if he is not visible to those praying and therefore does not complete the minyan, he is indeed considered as praying in a minyan since the room in which he is present is ancillary to the room in which they are praying. According to this, a person who prays in the women’s section, even though he does not show his face and he does not complete a minyan, is considered to be praying in a minyan. The reason for this is that the women’s section is auxiliary to the synagogue, and although it has its own separate entrance, in its essence it is subsidiary to the synagogue. However, l'chatchilah, it is good to actually enter the synagogue to pray because there are those who are stringent concerning this matter and do not equate the women’s section with the inner room to which the Radbaz refers (Halichot Shlomo 5:12).
13 Yechaveh Da’at 2:68. Ishei Yisrael 15, note 69, writes that Rabbi Shlomo Zalman Auerbach extracts from the Shulchan Aruch that whoever is not present with them "may answer," but is not obligated to answer. However, in the name of the Chazon Ish, he writes that one is obligated to answer. If there is an idol worshiper or a statue of idol worship standing between the chazan and the one who hears him, or if there is excrement located there, he may not answer Amen after the chazan. But if he listens to the radio, we do not fear that the radio waves pass through filthy places, since the voice is recreated through a receiver. That is also the reason why we may not fulfill our obligation of prayer or hearing megillah reading by listening to the radio, because the sound that is coming out of the radio is considered a different voice.
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