Class Notes - Class #5

Mitzvah #555 requires the beit din to execute by stoning someone who deserves it.  As usual our author describes the process in detail.  The author describes which of the four versions of the death penalty is considered most severe.  Someone who is subject to two different death penalties is executed by the more severe method.  And in a bizarre case of safek, if defendants who have been convicted and sentenced to death get mixed up with each other, they each get the least severe death penalty.

            Mitzvah #556 forbids judges from punishing someone who committed an offense under duress.  The source for this rule, Deut. 22:26, says that a woman who is raped should not be punished.  Our author explains that it is simply unfair to punish someone for something the person did not do by choice.

            This principle is considered so strong that it applies even in the worst types of cases:  idolatry, illicit sex, murder.  The author explains more about cases of illicit sex.  A man who is compelled to have sex with a woman who is ervah to him is potentially punishable even though he acted under duress, since  the rabbis thought even under those circumstances the man acted with intent.  But a woman who is forced to have sex is free of punishment even if during the sexual act she tells a potential rescuer not to intervene.  Clearly the rabbis understood sexual urges of men to be different from sexual urges by women, although we hardly have enough information here to figure out how the rabbis understood the difference.

            Our author writes this mitzvah/essay according to Rambam’s interpretation, but the author points out that Ramban considers the source verse a specific instruction not to punish a woman who was raped.  Presumably Ramban would agree that a beit din should not punish someone who acted under duress.

            The obvious question is what constitutes duress.  Uncharacteristically, our author does not deal with that at all.

            Mitzvah # 565 continues what we learned in mitzvot #362 and 363 about where people who are tamei with certain forms of tumah may go in relation to the  Temple.  When we studied tumah and taharah, we said that the m’tzorah may not enter within the walls of Jerusalem.  Our author says that according to this mitzvah someone who is tamei is permitted in Jerusalem but not on the Temple mount.  As the translator explains, the author probably means someone who is tamei because of an emission from his or her body.  A person tamei by contact with a corpse is permitted on the Temple mount but not past the Gate of Nicanor.  This description is based on the geography of the Second Temple.  Parallel rules presumably applied to the Tabernacle built in the desert and to the First Temple.  Although the Temple no longer exists, these mitzvot still apply. 

We learned in mitzvot #169 – 174 about the tumah generated by a skin condition called “tzara’at”.  Someone with a skin lesion that is tzara’at remain tamei until the lesion clears up and the person undergoes a long, complex ceremony to become tahor, so someone with a suspicious lesion might be tempted to try to remove the lesion.  Mitzvah #584 prohibits someone who has a skin lesion that might be tzara’at from plucking out some or all of the affected hairs or cauterizing some or all of the skin to remove the lesion.  Tazra’at can also affect houses, and this mitzvah prohibits someone from removing signs of tzara’at that appear on a house.  This mitzvah continues to apply even though most other rules of tumah and taharah are no longer relevant to our behavior.

In general, someone who removes signs of tzara’at is only punishable d’oraita for removing the suspicious material such that there are not enough signs of tzara’at left to make the person tamei. Someone who removes signs of tzara’at but leaves enough to establish the person as tamei is punishable with makkat mardut, the rabbinic punishment of whipping. 

The author considers a situation where this mitzvah could conflict with another mitzvah.  Consider the case of a Jewish man who needs to be circumcised but who has signs of tzara’at on his foreskin.  That man is subject to a positive mitzvah to proceed with circumcision as soon as possible and this negative mitzvah prohibiting him from removing the signs of tzara’at.  It seems the author discusses this question mostly to outline the rules for how to resolve conflicts between mitzvot.  The best option is to figure out some way to finesse the situation and satisfy both mitzvot, but that does not seem to be possible in this case.  If we are forced to choose one mitzvah or the other, the author says sometimes we should obey the positive mitzvah and forego the negative mitzvah, and sometimes we should forego the positive mitzvah and obey the negative mitzvah.  If the negative mitzvah is so serious that it is potentially punishable by karet or death, the negative mitzvah prevails and we should forego the positive mitzvah.  But for an ordinary negative mitzvah potentially punishable with malkot, we ignore the negative mitzvah and fulfill the positive mitzvah as the positive mitzvah is assumed to be an exception to the prohibition of the negative mitzvah.  Therefore, in the case of a conflict between circumcision and this mitzvah, the man involved should proceed with the circumcision.

The rules outlined for cases of conflicting mitzvot come up in many types of situations.  This passage also gives us a reason to want to keep track of which mitzvot are subject to which punishment even though no current court imposes these punishments. 

Mitzvot #568 and 569 deal with slaves who flee from another place and go to Israel.  Mitzvah #568 forbids returning that slave to the master, and mitzvah #569 prohibits oppressing the slave when he or she arrives in Israel.  Overall these mitzvot would seem to make Israel a refuge for escaping slaves, much as Canada was for slaves in the United States before the Civil War.  Others will see Israel as a place of hope for the downtrodden and that will enhance the reputation of God and the Jews.  And the Jews in Israel will learn to be kind.

            An eved c’na’ani has the choice of voluntarily starting on the path to conversion or being sold to another master.  The author specifies in mitzvah #569 that the slave who flees to Israel referred to in these mitzvot is an eved c’na’ani who has the standard intermediate status of a partial convert to Judaism.  When the slave arrives in Israel, the community should force the master to issue a formal manumission for him.  (We saw the text of a manumission document in mitzvah #579.)  The slave pays his value to the master, although the slave may pay that out over time.  But even if these formalities cannot be arranged, the Jewish community in Israel should not send the slave back to the master.

            Once the slave is freed, the slave is Jewish.  People might tend to look down on a former slave and feel free to mistreat such a person.  Jews are specially prohibited from oppressing converts, either verbally or financially.  Our author wrote movingly about the plight of a convert who has left community and family to join the Jewish people.  The convert is isolated, having left the normal social support systems, and the rest of the Jews should make that convert feel at home.  That notion applies especially to the slave refugee, so we have mitzvah #569 to reinforce the requirement to be kind especially for the freed slave.

            Jews who send the slave back are not punishable until the master actually re-enslaves the fugitive.

            The author does not discuss whether these mitzvot apply to ordinary slaves of ordinary masters, Jewish or not.  At the beginning of mitzvah #568 the author says these mitzvot apply “even if the master was a Jew.”  But it’s not clear why the slave of a non-Jewish master would be a convert on manumission. 

            Mitzvah #571 prohibits two specific animals from being brought as sacrifices:  an animal used to pay a prostitute, and an animal bartered for a dog.  The prostitute can be anyone, male or female, Jew, non-Jew, slave, anyone the customer is forbidden to have sex with. There is no prohibition on using money paid to a prostitute or money gained by selling a dog to purchase sacrificial animals.  The only prohibition is on using these animals for sacrifices; there is no prohibition on donating those animals to the Temple for other purposes.

            Sacrifices are designed to purify people’s thoughts, helping people feel repentant.  The person bringing the sacrifice should identify with the sacrificial animal:  “there, but for the grace of God, go I.”  The person bringing the sacrifice should not be distracted by defiling thoughts.  It can be very distracting if the animal for the sacrifice was used to pay a prostitute.  Dogs are sometimes raised to be vicious, so associating a sacrifice with a dog might encourage arrogance rather than contrition.  Apparently the author is not entirely satisfied with this explanation so he encourages his son to seek a better explanation.  Of course, this is not an easy mitzvah to explain.

            Ramban, for obvious reasons, counts these as two separate mitzvot.

Mitzvot #574 and 575 return us to the topic of keeping our promises, a topic we have seen periodically all the way back to mitzvah #30.  This topic is particularly prone to close distinctions.  We have studied those on several occasions, so here we will focus on the main point. 

            The author distinguishes three types of promises. 

1.       Nidrei gavoha,” “vows concerning Heaven.”  According to Ramban, Deut. 23:24, the source verse for mitzvah #575, requires Jews to fulfill promises that are considered nidrei gavoha.

2.      Nedarim v’shvu’ot shel bitui,” other formal vows and oaths.

According to Ramban, there is a distinct mitzvah requiring us to fulfill each of those. 

3.      Other promises not made as formal vows or oaths, ordinary promises or statements about what we will or will not do.

Rambam delineates mitzvah #574 as a negative mitzvah prohibiting delay in fulfilling a neder gavohaRambam delineates mitzvah #575 as a positive mitzvah to fulfill all formal vows promptly.  Ramban understands mitzvah #575 as a positive mitzvah to fulfill nidrei gavoha promptly, and lists a separate positive mitzvah requiring Jews to fulfill other types of formal vows.  The author follows his regular practice of relying on Rambam for the count and definition of the mitzvot, but here Rambam counts one mitzvah where Ramban counts two.  Our author describes Ramban’s understanding at length, since the author apparently agrees with Ramban rather than Rambam.  But note how he ends the discussion by encouraging his son to follow up, study the topic carefully and take a side.  What a difference in tone from the kinds of things the author said earlier.  Now he sees his son as a full member of the community of those who learn Torah.

Nidrei gavoha include promises Jews make to bring voluntary sacrifices; promises of donations to the Temple in any form, like consecrations, herem, etc.; designated agricultural taxes, for example tithes or firstborn animals; and designated parts of the harvest that must be left for the poor.  These promises should be fulfilled as soon as possible.  The promisor violates a positive mitzvah by delaying.   If the promisor delays fulfilling the promise past the occurrence of the three pilgrimage festivals, the promisor has also violated the prohibition in mitzvah #574.   Nidrei gavoha are binding and governed by the obligation to fulfill them promptly even if they were made without using formal language of a vow or oath.

A promise to give charity is also a neder gavoha.  The author emphasizes the need for the promisor to fulfill that promise promptly as required by this positive mitzvah even though the promisor is not punishable for failing to give the charity until the promisor has violated the negative mitzvah by waiting until three pilgrimage festivals have passed. 

But other authorities think the analysis of this case is more complicated.  They distinguish cases where the promise is entirely voluntary, like charity, and cases where the promisor has a pre-existing obligation and simply designates specific items toward fulfilling that obligation, like parts of the harvest that various mitzvot require a farmer to leave for the poor.  If the promisor makes a voluntary promise and is able to fulfill it promptly, the promisor violates the prohibition in mitzvah #575 immediately even before three pilgrimage festivals have passed.  But if either the promise was in service of something the farmer was required to do anyway, or if it is impossible for the promisor to fulfill the promise immediately, the promisor does not violate mitzvah #575 until three pilgrimage festivals have passed.  So if the farmer designates the required parts of the field for the poor the promisor does not violate mitzvah #575 by failing to follow through on the promise immediately. 

In explaining the current applicability of these mitzvot the author singles out promises to give charity, and the author specifically plays out the possibility that a promisor violates mitzvah #575 by failing to pay immediately rather than only after three pilgrimage festivals have passed. 

Nedarim shel bitui include any other formal vows, for example promises to go to a specific place or not go to a specific place, to eat or not eat something.  Mitzvah #407 prohibits a promisor from violating such a neder.  These nedarim do not have a time limit, and the promisor has not violated any prohibition until circumstances make it impossible for the promisor to fulfill the vow.  So if someone takes a formal vow to eat a specific chocolate bar, the promisor has not violated any prohibition no matter how long the promisor procrastinates.  But if the dog eats the chocolate before the promisor does, the promisor has sinned.

According to our author, there is no Torah requirement to fulfill our ordinary promises.  But, the author says, anyone graced by God with any sense will fulfill what he or she promised.

      Mitzvot #608 through 610 are mitzvot about ma’aser sheni which we studied in more detail in mitzvah #473.  In certain years of the shmittah cycle a farmer designates part of the crop as ma’aser sheni, which the farmer takes to Jerusalem and eats, possibly sharing it with guests.  If that is not possible, the farmer redeems it for money and spends the money on food to be bought and eaten in Jerusalem. 

Mitzvah #608 prohibits an onen from eating ma’aser sheni and, by extension, other sacrificial foods.  D’oraita someone is an onen on the day (but not the night) of the death and burial of a relative for whom the person is required to mourn. D’rabanan someone is also an onen during any additional time between the death and the burial and on the night after the burial.  The author explains that this period of acute grief and anger is incompatible with the reconciliation with God that eating sacrificial food is intended to foster.

Ma’aser sheni must remain tahor.  If the designated ma’aser sheni becomes tamei, mitzvah #609 requires that the farmer redeem the ma’aser sheni that became tamei for money and spend that money on food purchased and eaten in Jerusalem.  This mitzvah also prohibits someone who is tamei from eating the ma’aser sheni.

Mitzvah #610 prohibits the farmer from spending that money on anything except food or ointments to be applied to the body.  If some of that money was spent for something else, the farmer should designate a comparable amount and spend that on food to eat in Jerusalem.  Since the farmer can rectify the illicit purchase, there is no other punishment for violating this mitzvah.