Shulchan Arukh, Orach Chayim 108:5-7

Sugya Map

• Issue: The halakhic framework of Tashlumin (make-up prayers) for missed Amidot.
• Nafka Mina(s):
  • The sequence of Tashlumin: Must the make-up Amidah follow the current Amidah? If inverted, is it valid?
  • The scope of Tashlumin: Is it limited to the immediately preceding prayer, or can multiple missed prayers be made up?
  • The role of kavanah and circumstance: Do shogeg (mistake/unintentional) and ones (extenuating circumstance/forced) have different Tashlumin rules than m'zed (intentional omission)?
  • The concept of Tefilat Nedavah (voluntary prayer) as a potential avenue for making up prayers that otherwise lack Tashlumin, including the requirement for חידוש (innovation).
  • Specific scenarios: Tashlumin for Musaf, on Shabbat/Rosh Chodesh, and when Ya'aleh V'yavo or Ata Chonantanu are relevant.
  • Defining "extenuating circumstance" for Tashlumin eligibility (e.g., mistaken time, monetary loss, drunkenness).
• Primary Sources: Shulchan Arukh, Orach Chayim 108:5-7. Implicitly, Gemara Berachot 26a-b.

Text Snapshot

Shulchan Arukh, Orach Chayim 108:5-7:

5. If one erred or was forced [by circumstance] and did not pray the morning prayer, one should pray the afternoon prayer twice: the first is the afternoon prayer, and the second as a make-up. If one inverted [the order], one has not fulfilled one obligation in prayer for the prayer which is a make-up, and one needs to go back and pray it [again]. And the same law applies in every case in which one must pray a make-up prayer. If one erred and did not pray the afternoon prayer, one should pray the evening prayer twice: the first is for the evening prayer, and the second is for the make-up. If one erred and did not pray the evening prayer, one should pray the morning prayer (i.e. Amidah) twice: the first for the morning prayer, and the second as a make-up. After one says "Yotzeir" [the blessings of the Recitation of the Sh'ma in the morning prayer] and the Eighteen Blessings (i.e. the Amidah), one should say Ashrei and then afterwards pray the Eighteen Blessings for the make-up evening prayer. [And similarly, when one prays the evening prayer twice because one did not pray the afternoon prayer, one should say Ashrei between one prayer [i.e. Amidah] and [the other] prayer.] [Sefer Mitzvot Katan and the Rivash - Siman 140]

6. [This statement] that one can complete [i.e. make-up] the [Amidah] prayer that one missed applies specifically during the time of [the next Amidah] prayer, but when it is not the time of [that next Amidah] prayer, one may not. There are no make-up prayers other than the immediately adjoining [i.e. preceding] prayer alone; so that if one erred and did not pray the morning prayer and [also] the afternoon prayer, one [only] prays the evening prayer twice [with] the latter prayer as a make-up for the afternoon prayer, but for the morning prayer there is no make-up; and the same goes for all the rest of the prayers. Even though there are no make-up prayers other than for the prayer immediately adjoining that prayer, and (other) prayers that one missed [i.e. one skipped two or more as mentioned above] do not have a make-up; if one wants to pray that one [i.e. the one that cannot be make-up anymore] as a voluntary prayer and one will innovate something [new] into it, one is allowed to and it is proper to do so. If the whole day passed and one did not pray the additional prayer [on Shabbat, Festivals, and Rosh Chodesh], there is no make-up for it.

7. [If] it was on purpose and one did not pray [an Amidah], there is no make-up for it. Even at the prayer that is immediately adjoining it. And if one wanted, one may pray it as a voluntary prayer and one does need an innovation of something new [in it] if one prayed it at the prayer time immediately adjoining it. One who did not pray [the Amidah] while there was still enough time to pray because one supposed that time would still remain for one after one finished whatever thing one was involved in, and between one thing and another, the time passed; and similarly, one who was troubled with monetary needs so that one would not incur a loss, and because of that one lost [one's opportunity] to pray; and similarly someone who is drunk and did not pray. All of these are considered people with extenuating circumstances and they [do] have a [an opportunity for] a make-up. Gloss: From the outset, one should not let the prayer time pass because of monetary loss. [T'rumat Hadeshen - Siman 5] If one erred and did not pray the afternoon prayer on the eve of Shabbat, one should pray the evening prayer [i.e. Shabbat Amidah] twice; the first is for the evening prayer and the second is the make-up [for the afternoon prayer]. Gloss: similarly, if one did not pray the afternoon prayer on the eve of Rosh Chodesh [the New Month], one prays the Rosh Chodesh [prayer] twice. And if one did not mention "Ya'aleh V'yavo" [i.e. the insertion for Rosh Chodesh] in the first one, but one mentioned it in the second one, one must go back and pray [again]. But if one did not mention it in both of them, or if one mentioned it in the first but not the second, then one does not need to go back ([based on the] Kol Bo, except for what he wrote regarding saying the Rosh Chodesh prayer twice) If one erred and did not pray the afternoon prayer on Shabbat, one should pray it upon the [immediately after the end of] Shabbat (two weekday prayers); one separates [Shabbat from weekday i.e. the insertion of "ata chonantanu" into the 4th blessing of the Amidah] in the first, but one does not separate in the second. If one did not separate in the first, but separated in the second, the second prayer counts, but the first prayer does not count. If one separated in both of them, or did not separate in either of them, one has fulfilled one's obligation [for both recitations of the Amidah]. If one erred during the afternoon prayer of Shabbat and prayed the Eighteen [i.e. the weekday Amidah] and did not mention Shabbat, [immediately after the end of] Shabbat one prays [the Amidah] twice, and does not separate [Shabbat from weekday - i.e. insert "ata chonantanu"] in the second; and it should be prayed according to the law of a voluntary prayer and there is no need to innovate any [new] thing [into it]. The same applies if one did not mention "Ya-aleh V'yavo" during the afternoon prayer of Rosh Chodesh. One who erred and mentioned something [belonging to] one of the other days [i.e. a passage or insertion from a different occasion] in one's prayer when it was not its time [to say it], it is not considered an interruption. Gloss: if one realizes that one erred, one stops [saying the incorrect passage], even in the middle of the blessing(Ohr Zarua in Tractate B'rachot)

Dikduk and Leshon Nuance

• "אם טעה או נאנס" (108:5): The text explicitly distinguishes between shogeg (error) and ones (coercion/extenuating circumstance), granting both Tashlumin. This sets the stage for the m'zed distinction in 108:7.
• "הפך" (108:5): The inversion of the order (make-up first, then current) invalidates the Tashlumin. This highlights the hierarchical nature of Tashlumin as a secondary obligation.
• "אין לו תשלומין אלא תפלה הסמוכה לה בלבד" (108:6): This crucial phrase is the locus classicus for the limitation of Tashlumin to the immediately preceding prayer. Its unequivocal phrasing makes subsequent Acharonic leniencies all the more striking.
• "מזיד" (108:7): Intentional omission is explicitly denied Tashlumin, a foundational principle rooted in the Gemara.
• "נדבה" and "שיחדש בה דבר" (108:6-7): The concept of a voluntary prayer for otherwise un-make-up-able prayers, with the Rema's gloss introducing the condition of "innovation," opens a unique halakhic avenue. The subtle distinction between shogeg (where חידוש is needed for non-adjoining Nadavah) and m'zed (where חידוש is not needed for adjoining Nadavah) is also noteworthy.

Readings

Magen Avraham (OC 108:7)

The Magen Avraham (OC 108:7) presents a significant chiddush that appears to challenge the explicit limitation of Tashlumin found in Shulchan Arukh 108:6 ("אין לו תשלומין אלא תפלה הסמוכה לה בלבד"). He states:

"אם רצה. ולכן מי שהיה חולה או תפוס בתפיס' (ולא היה המקום נקי) כשיצא יתפלל כל התפלות שהפסיד [ב"י תר"י] ואם יצא מתפיסה בר"ח מזכיר בכלם יעלה ויבא וה"ה אם יצא בשבת [כ"ה]:" ("If he desires." Therefore, one who was sick or imprisoned (and the place was not clean), when he is released, he should pray all the prayers he missed [Beis Yosef 610]. And if he was released from prison on Rosh Chodesh, he mentions Ya'aleh V'yavo in all of them. And the same applies if he was released on Shabbat [Kenas Hagedolah].)

The Magen Avraham, citing the Beis Yosef (though the reference תר"י appears to be a misprint for Siman 108, as noted by later Acharonim), posits that an anus (one under duress, e.g., sick or imprisoned) should pray all the prayers he missed, not just the immediately preceding one. Furthermore, he instructs that if this occurs on Rosh Chodesh or Shabbat, the appropriate insertions (like Ya'aleh V'yavo) should be made in all of these make-up prayers. This is a radical departure from the pshat of the Shulchan Arukh, which limits Tashlumin to the adjoining prayer. The chiddush here is that ones might create a broader scope for Tashlumin, perhaps transforming the missed prayers into a chova (obligation) that can be fulfilled retroactively, beyond the standard Tashlumin mechanism.

Mishnah Berurah (OC 108:18-19)

The Mishnah Berurah (OC 108:18-19) engages directly with the Magen Avraham's chiddush and offers crucial clarifications and a practical solution. On 108:18, he reiterates the Magen Avraham's position regarding the anus:

"(יח) אם רצה - ולכן מי שהיה חולה או תפוס בתפיסה ולא היה המקום נקי כשיצא יתפלל כל התפילות שהפסיד ויתפלל מעריב ואח"כ מנחה ואח"כ שחרית ואם יצא מתפיסה בר"ח מזכיר בכולם יעלה ויבא אבל אם יצא בשבת ויו"ט ימתין עד הערב ויתפלל דקי"ל בסימן ק"ז שאין מתפללין נדבה בשבת ויו"ט:" ((18) "If he desires - " Therefore, one who was sick or imprisoned and the place was not clean, when he is released, he should pray all the prayers he missed. And he should pray Ma'ariv, and then Mincha, and then Shacharit. And if he was released from prison on Rosh Chodesh, he mentions Ya'aleh V'yavo in all of them. But if he was released on Shabbat or Yom Tov, he should wait until the evening and pray, for we rule in Siman 107 that one does not pray a Nadavah on Shabbat or Yom Tov.)

The Mishnah Berurah specifies the order of these multiple make-up prayers (Ma'ariv, then Mincha, then Shacharit, which is the reverse chronological order of their omission). Crucially, he adds a significant limitation: if released on Shabbat or Yom Tov, one must wait until Motza'ei Shabbat/Yom Tov to pray these extra Amidot. His reasoning is that according to Siman 107, tefilat nedavah is not permitted on Shabbat or Yom Tov. This implies that the Magen Avraham's allowance for multiple make-up prayers, even for an anus, is understood as a form of tefilat nedavah, albeit one based on minority opinions that consider these prayers obligatory. This recontextualizes the Magen Avraham's leniency within the broader framework of nedavah.

Then, on 108:19, the Mishnah Berurah offers a practical solution to navigate the conflicting opinions:

"(יט) ונכון וכו' - עיין בפמ"ג שהסכים דטוב שיתנה ויאמר אם אני חייב להתפלל ה"ז לחובתי וא"ל הרי זו לנדבה ובזה יצא ידי כל הדיעות שיש כמה דיעות שסוברים דיש תשלומין לתפילה אפילו לכמה תפילות שעברו:" ((19) "And it is proper, etc. - " See in the Pri Megadim who agreed that it is good to make a condition and say: "If I am obligated to pray this, then it is for my obligation, and if not, then it is a Nadavah." And with this, he fulfills his obligation according to all opinions, as there are several opinions who hold that there are Tashlumin for prayer, even for several prayers that have passed.)

This chiddush of the Mishnah Berurah, citing the Pri Megadim, is the recommendation of making a t'nai (condition). By explicitly stating that the prayer is for chova if obligated, and nedavah if not, one can satisfy all shittot (opinions). This pragmatic approach allows an individual to fulfill the more lenient opinions while not transgressing the stricter ones regarding nedavah (e.g., the חידוש requirement or the general prohibition of nedavah in zmanim where it's not applicable). It's a classic Acharonic move to synthesize diverse opinions into a workable halakha.

Friction

The Scope of Tashlumin: "Only the Adjoining Prayer" vs. "All Missed Prayers"

The most glaring friction arises between the Shulchan Arukh's unequivocal statement in OC 108:6: "אין לו תשלומין אלא תפלה הסמוכה לה בלבד" (There are no make-up prayers other than the immediately adjoining prayer alone) and the Magen Avraham's ruling in OC 108:7 (echoed by Ba'er Hetev and Mishnah Berurah 108:18) that an anus (e.g., sick or imprisoned) should pray all the prayers he missed. This is not merely a nuance; it's a fundamental divergence on the very possibility of making up multiple prayers.

• The Kushya: How can the Magen Avraham instruct one to pray all missed prayers when Maran explicitly limits Tashlumin to the adjoining one? This seems to be a direct contradiction of the ikkar hadin. Furthermore, the Magen Avraham's instruction for Rosh Chodesh/Shabbat insertions in all these prayers reinforces their seemingly obligatory nature, not just nedavah. This is particularly perplexing given that tefilat nedavah generally requires חידוש (innovation) and is restricted on Shabbat/Yom Tov (OC 107).

• The Best Terutz (Mishnah Berurah's Synthesis): The Mishnah Berurah (108:18-19) provides a multi-faceted resolution.

  1. Reframing as Nedavah: The Mishnah Berurah clarifies that the Magen Avraham's allowance for multiple make-up prayers, even for an anus, is ultimately predicated on these additional prayers being nedavah. This is evident from his caveat regarding Shabbat/Yom Tov: "אבל אם יצא בשבת ויו"ט ימתין עד הערב ויתפלל דקי"ל בסימן ק"ז שאין מתפללין נדבה בשבת ויו"ט" (But if he was released on Shabbat or Yom Tov, he should wait until the evening and pray, for we rule in Siman 107 that one does not pray a Nadavah on Shabbat or Yom Tov). This indicates that even the Magen Avraham's leniency for the anus is subject to the rules of nedavah. The extra prayers are not chova in the conventional sense of Tashlumin but rather nedavah in case there's a shitah that views them as chova.
  2. Reliance on Minority Opinions: The underlying assumption of the Magen Avraham (and later Acharonim who follow him) is that while the primary psak of the Shulchan Arukh limits Tashlumin, there are indeed shittot among the Rishonim (e.g., Rabbeinu Yonah, cited by Be'er HaGolah 108:6, though the specific ruling for multiple Tashlumin might be from other sources or a broader interpretation) that permit Tashlumin for more than just the immediately preceding prayer, especially for an ones. The Mishnah Berurah (108:19) explicitly states this: "שיש כמה דיעות שסוברים דיש תשלומין לתפילה אפילו לכמה תפילות שעברו" (as there are several opinions who hold that there are Tashlumin for prayer, even for several prayers that have passed).
  3. The T'nai (Condition): To reconcile the various opinions and avoid the safek (doubt) of whether these additional prayers are truly obligatory or merely nedavah (and thus potentially problematic without חידוש or on Shabbat/Yom Tov), the Mishnah Berurah endorses the Pri Megadim's solution of making a t'nai: "אם אני חייב להתפלל ה"ז לחובתי וא"ל הרי זו לנדבה" (If I am obligated to pray this, then it is for my obligation, and if not, then it is a Nadavah). This allows one to fulfill the chova according to those who hold it, and perform a valid nedavah according to those who don't, without requiring a חידוש if the nedavah itself stems from a potential chova.

This terutz masterfully navigates the apparent contradiction by re-categorizing the additional prayers as nedavah based on a minority chova opinion, and then providing a practical mechanism (the t'nai) to resolve the safek.

The Rema's Chiddush Requirement for Nadavah

A secondary friction point emerges regarding the Rema's requirement for חידוש (innovation) when praying nedavah. The Rema in OC 108:6 states: "...if one wants to pray that one [i.e. the one that cannot be make-up anymore] as a voluntary prayer and one will innovate something [new] into it, one is allowed to and it is proper to do so." This is for shogeg (error) regarding a non-adjoining prayer. However, in OC 108:7, for m'zed (intentional omission) of the adjoining prayer, the Rema writes: "And if one wanted, one may pray it as a voluntary prayer and one does need an innovation of something new [in it] if one prayed it at the prayer time immediately adjoining it." The Magen Avraham (OC 108:8) comments on this: "ושיחדש . ולפי מ"ש רמ"א שם דצריך שיתחדש אצלו לא שייך כאן:" ("And that he innovate." And according to what the Rema wrote there (108:6) that he needs to innovate something new, it is not applicable here (in the case of m'zed for the adjoining prayer).)

• The Kushya: The Magen Avraham's comment ("לא שייך כאן") seems to contradict the Rema's explicit statement that for a m'zed who prays nedavah for the adjoining prayer, "one does need an innovation of something new." The Magen Avraham seems to imply the opposite.

• The Terutz: The Magen Avraham is likely not contradicting the Rema, but rather clarifying the Rema's own phrasing. The Rema writes for m'zed (108:7): "and one does need an innovation of something new [in it] if one prayed it at the prayer time immediately adjoining it." This "does need" is often misread. A careful look at the Rema's Hebrew: "וצריך חידוש דבר אם התפלל אותה בתפלה הסמוכה לה", where "וצריך" (and he needs) could be parsed to mean "and [he needs it] only if he prayed it...". The standard reading is that it does not need a חידוש when it's for an adjoining prayer. The Magen Avraham is emphasizing that in the specific context of a m'zed making up the adjoining prayer as nedavah, no חידוש is required, in contrast to a shogeg making up a non-adjoining prayer (108:6). The Rema's wording for m'zed is somewhat convoluted; the Magen Avraham simplifies it by stating the clear distinction: m'zed for adjoining nedavah needs no חידוש, while shogeg for non-adjoining nedavah does.

Intertext

The Source of Tashlumin in Gemara Berachot

The entire concept of Tashlumin is rooted in Berachot 26a-b. The Gemara states: "רבי יוחנן אמר: תפלת ערבית רשות" (Rabbi Yochanan said: the Evening Prayer is optional). The discussion then ensues regarding Tashlumin. The Gemara asks, "אם כן, תהא תפלה של מנחה משלימה לתפלה של שחרית" (If so, the Mincha prayer should make up for the Shacharit prayer). This is the initial conceptual move to derive Tashlumin. The Gemara subsequently states: "תפלה של ערבית משלימה לתפלה של מנחה" (The Maariv prayer makes up for the Mincha prayer), and this is the direct source for the Shulchan Arukh's ruling in OC 108:5. The Gemara's discussion implies a fundamental principle of Tashlumin: that a later prayer can compensate for an immediately preceding missed one. The Rishonim, such as Rabbeinu Yonah (cited by Be'er HaGolah 108:6), elaborate on this, often drawing parallels to korbanot (sacrifices) that have Tashlumin (e.g., Pesach Sheini for Korban Pesach), where the "time" of the original obligation has passed, but a later opportunity for fulfillment is granted. This analogy underscores the idea that Tashlumin is a din of k'neged (corresponding to) rather than a direct fulfillment bi'zmano (in its proper time).

Tefilat Nedavah and חידוש

The notion of Tefilat Nedavah (voluntary prayer) with a requirement for חידוש (innovation) finds parallels and context in other halakhic discussions.

• OC 107: This siman discusses the general rules of Tefilat Nedavah. It establishes that one may pray nedavah only if one has sufficient kavanah (intention) and yirat Shamayim (fear of Heaven). Crucially, it notes a dispute about whether nedavah is permitted on Shabbat and Yom Tov, with the Shulchan Arukh and Rema leaning towards prohibition unless there's a specific need (e.g., praying for a sick person). This is precisely the point the Mishnah Berurah (108:18) utilizes to restrict the Magen Avraham's leniency for anus on Shabbat.
• The nature of חידוש: The specific meaning of חידוש (innovation) is debated among Poskim. Some understand it as adding a new perek (chapter) of Tehillim or a new request in the Amidah; others, more stringently, require a chiddush in halakha or aggadah. The goal is to ensure the nedavah isn't a mere repetition, signifying a lack of kavanah or a perceived "burden" on Heaven (see Shabbat 11a regarding tefilat chatamim). This requirement helps distinguish a true voluntary offering from an unnecessary one. The Rema's nuanced application of חידוש for shogeg (non-adjoining) vs. m'zed (adjoining) highlights the degrees of obligation and the halakha's sensitivity to intent and circumstance.

Psak/Practice

The halakhic practice largely follows the Mishnah Berurah's synthesis, which prioritizes the Shulchan Arukh's primary ruling while accommodating the more lenient opinions through a conditional approach.

1. Immediate Adjoining Prayer: For one who missed an Amidah due to shogeg or ones, the standard practice is to pray the immediately following Amidah twice, with the first being the current prayer and the second the Tashlumin. The order is crucial; inverting it invalidates the Tashlumin (OC 108:5).
2. Multiple Missed Prayers for an Anus: While the Shulchan Arukh 108:6 states "אין לו תשלומין אלא תפלה הסמוכה לה בלבד," the Mishnah Berurah (108:19), following the Pri Megadim, advises that an anus who missed multiple prayers should pray all of them, but with a t'nai (condition). One should declare: "If I am obligated to pray this, then it is for my obligation, and if not, then it is a Nadavah." This allows one to rely on the opinions that grant Tashlumin for multiple prayers to an anus, without transgressing the more stringent view. These prayers should be prayed in reverse chronological order of omission (e.g., Ma'ariv for Mincha, then Mincha for Shacharit, etc.) (MB 108:18).
3. Shabbat/Yom Tov for Multiple Tashlumin: If the anus is released on Shabbat or Yom Tov, they should not pray these additional Amidot (even with a t'nai) until Motza'ei Shabbat/Yom Tov, as Tefilat Nedavah is generally not permitted on these days (MB 108:18, citing OC 107).
4. Intentional Omission (M'zed): For an Amidah missed m'zed, there are no Tashlumin (OC 108:7). However, one may pray the immediately adjoining prayer as a Tefilat Nedavah, and in this specific case, no חידוש is required (Rema 108:7, as understood by Magen Avraham 108:8). For m'zed of non-adjoining prayers, or for shogeg of non-adjoining prayers, if one wishes to pray them as nedavah, a חידוש is required (Rema 108:6).
5. Rejection of Nadavah in Our Times: The Kaf HaChayim (108:26:1) takes a strong stance, arguing that in our times, one should not pray Tefilat Nedavah at all, especially when it relies on a minority opinion (like multiple Tashlumin for an anus). He states that the sfeka d'dina (doubt) here is not strong enough to warrant nedavah, as the opinion allowing multiple Tashlumin is singular and not the accepted psak. Therefore, according to Kaf HaChayim, one would only make up the immediately preceding prayer. This reflects a broader Acharonic trend of caution regarding Tefilat Nedavah due to concerns about kavanah and the potential for bizui mitzvot (devaluing mitzvot).

Takeaway

The laws of Tashlumin balance the gravity of prayer with human fallibility, demonstrating that while the primary obligation is strict, halakha often provides a pathway for redress, albeit sometimes through the nuanced mechanism of Tefilat Nedavah and its accompanying conditions. The ongoing tension between Maran's strict limitation of Tashlumin and the Acharonic leniencies for an anus highlights the dynamic interplay of foundational principles and compassionate interpretation in psak.