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Class Notes - Class #2

Mitzvah #360 requires a farmer to tithe certain domestic animals.  Each year the farmer must set aside one of ten newborn kosher domestic mammals.  The farmer takes the animals to Jerusalem to eat the meat there. Mitzvah #361 prohibits the farmer from selling or redeeming the specified animals.  Our author cites Rambam’s holding that if a farmer tried to sell a tithed animal the sale would not be effective, ownership of the animal would not transfer, and therefore the farmer would not be punishable.

            The farmer is required to tithe each type of mammal separately, but may count sheep and goats together since they are both included in the Biblical term “tson.” The tithe is taken from each year’s crop of newborn animals separately; the farmer ought not take an animal from one year as part of the tithe for a different year although if the farmer did that it is effective.  Our author describes the process.  The farmer herds the newborns together in a pen with a narrow opening.  The mother animals are kept outside so the newborns want to get out of the pen to their mothers.  When the pen is opened, the farmer counts off the animals and marks each tenth animal with a red paint stripe.  The farmer verbally identifies each marked animal as “ma’aser.”

            The farmer brings the ma’aser animals to Jerusalem.  The animals are slaughtered at the Temple and the fat and blood are burned on the altar.  The farmer and/or his or her guests eat the meat.  We saw this pattern before when we studied what to do with the fruit of a tree in its fourth year.

            The author explains the shoresh as a way of funding sabbatical study in Jerusalem.  A farmer collects ma’aser of animals, “ma’aser sheni,” one of the agricultural taxes, and the fruit of trees in their fourth year, thus amassing a collection of food that can only be eaten in Jerusalem.  This provides an incentive and support for someone from each family to spend time in Jerusalem, the center of Torah study under the leadership of the cohanim and the Sanhedrin.  If that person in Jerusalem takes advantage of the opportunity to study Torah, each family will have the benefit of a family member with a Torah education.  The educated family member will bring the teachings home from Jerusalem, spreading Torah learning more broadly than local teachers could. That pattern brings Torah knowledge to people in the household who might not venture out to attend Torah lectures, like women and children.  Even students who might attend weekly Torah lectures will retain more if the teaching takes place within the household.  These tax mitzvot have the potential to radically alter the spiritual life of the Jews.

            The farmer applies this process to all the baby animals even if some of them are disqualified as sacrifices because of a mum.  If one of the tithed animals has a mum, the farmer may eat that animal anywhere.  But animals of mixed breed, treifah animals, animals less than eight days old, or animals whose mothers have died are not included in the flock for tithing. If the farmer miscounted by one out of ten the counting is valid, but if the farmer miscounted by more than that the counting process is invalid and, presumably, the farmer has to start the counting process over.

            Most agricultural products may not be used until the farmer has designated the required agricultural taxes, but the farmer may take and eat a baby animal until the time the rabbis designated as the time for tithing animals.  After that time the farmer may not use or sell a baby animal until the tithe animals have been designated.  Our author says most farmers did not use any baby animals until after tithing.  But the rabbis created an exception.  The farmer may sell baby animals for fifteen days before each of the pilgrimage holidays even if the farmer has not yet tithed the animals.  That way, animals will be available for holiday sacrifices and meals.

            The author explains Rambam’s position that these mitzvot apply to men and women, whether the Temple exists or not, anywhere.  But the rabbis were worried that after the Temple was destroyed people would tithe animals and then eat the tithed animals since those animals could not be brought as sacrifices.  Therefore the rabbis prohibited our designating tithed animals when the Temple is not functioning.  (We have seen the rabbis make very broad rulings before.  Here the rabbis are telling us not to fulfill a Torah commandment.)  If someone now did designate tithed animals the designation is valid.  If the animals had a mum and was therefore disqualified as a sacrifice the owner may eat or sell that animal.  But if the animal is qualified as a sacrifice the owner may only keep the animal hoping for restoration of the Temple.

            The rabbis also extended the prohibition on selling a tithed animal.  They forbade selling a tithed animal with a mum whether it was still alive or even if it had been slaughtered, lest people think it was permitted to sell tithed animals that did not have blemishes. A piece of meat from a tithed animal may not be used to check the weight of another piece of meat because that looks like the meat is being sold.  It was permitted to weigh the entire animal, however.  Once a tithed animal had been slaughtered, the owner could sell the non-edible parts, the skin, bones, etc., even if a little meat adhered to them. 


Mitzvot #362 and 363 deal with an aspect of tumah we mentioned only briefly when we studied that topic earlier.  (You may want to review notes on that topic and on the geography of the Temple.)  Mitzvah #363 prohibits certain people who are tamei from entering certain areas of Jerusalem and the Temple, and mitzvah #362 is a positive mitzvah on others to prevent those people from entering the designated areas.

            Our author explains that tumah reflects a spiritual distance between the tamei person and God.  Tumah weakens the intellectual spirit, separating the person’s intellect from the Divine intellect.  The person afflicted with intellectual weakness ought not enter the Temple.  These prohibitions are mentioned many times in the Torah.  Our author notes that this reflects God’s concern for us.  God knows people don’t always do what they are told, so God keeps reminding us.  The author says God reminds us about important things.  After all, the punishment for a tamei person going where he or she is prohibited to go is karet. But these mitzvot do not seem extraordinarily important, and many obviously important matters are not repeated in the Torah, or are only implied.  The author says this is all for a worthwhile reason, but he does not say what that reason is.

            The source verses for these mitzvot, Num. 5:2-3, apply these special restrictions to a m’tzorah, a zav or zavah, and someone who is tamei by contact with a corpse.  These three categories reflect three different levels of tumah, and the restrictions in these mitzvot are different at each level.

1.        The most severe type of tumah is the m’tzorah, who can transmit tumah to anything or anyone under the same roof as the m’tzorah.  The m’tzorah may not enter within the walls of Jerusalem.

2.      Although the source verses only refer to a zav or zavah, the same restrictions apply to a yoledet, and a niddah.  These forms of tumah are less severe than m’tzorah because they do not transmit by being under the same roof, but they do transmit to something the tamei person sits or lies on. Those people are permitted in Jerusalem but not on the Temple mount.

3.      A person tamei by contact with a corpse is the least severe form of tumah among the categories mentioned in the source verses since that person does not transmit tumah by sitting on something.  That person is permitted on the Temple mount but not past the Gate of Nicanor.

The author describes two other categories of prohibitions.  A t’vul yom could enter the chil, and someone lacking atonement, m’husar kapparah, could go all the way into the ezrat yisrael.


This description is based on the geography of the Second Temple.  Parallel rules applied to the Tabernacle built in the desert and to the First Temple.  Of course the Tabernacle was not in Jerusalem so rules about certain tamei people not entering Jerusalem or the Temple mount would not apply directly.  But there were boundaries around the Tabernacle that corresponded to these areas and our author says people knew where those boundaries were.  Although the Temple no longer exists, these mitzvot still apply.  They prohibit tamei people in these categories from entering the places where these areas of the Temple once were.

            The author includes a more detailed discussion of exactly who is punishable for inappropriately entering certain areas, relating this prohibition to the categories of tumah at different levels that we saw earlier and to situations when a nazir has to start over because the nazir has encountered tumah in violation of the vow the nazir took.  We have already discussed tumah and taharah in detail, so I have chosen not to discuss the details of this discussion.


Mitzvah #364 requires that as we repent we confess to God.  Although Yom Kippur is a day designated for repentance, our author says this mitzvah applies everywhere and at all times.

            The mitzvah/essay begins with a long explanation of how the midrash halachah derives the scope of this mitzvah from the source verses.    Lev. 5:5, Lev. 16:16 and the source verses for this mitzvah, Num. 5:5-7, all describe someone confessing in a particular situation. The prime case is someone bringing a hattat sacrifice who confesses over the animal before the animal is slaughtered. The midrash halachah looks to expansive language in these verses so that the verses are understood to require confession for repentance of any wrongdoing. The process is familiar to us by now, since the author has provided us lots of practice in how halachah is derived from Biblical verses.

            But there are two exceptions to this overall requirement of confession.  One should not confess to having done something the person has not done, even if the person is wrongfully convicted and punished for it by the beit din.  And when the wrongdoer did harm to someone else, the wrongdoer ought not confess that sin to God until the wrongdoer has made restitution and apology to the person who was hurt.

            The author describes a model of the process of repentance.  Repentance is crucial because when we have acted improperly we imply that God might not know or care.  When someone repents, the wrongdoer reaffirms belief that every action is known to God and that each person must take responsibility for what the person chooses to do.  The wrongdoer confesses verbally, explaining in his or her own words what the person did wrong, and expressing remorse and resolve not to act badly again.  The act of verbalizing helps the wrongdoer take confession seriously and discourages the wrongdoer from repeating the bad behavior. Our author mentions that during the period from Rosh haShannah to Yom Kippur Jews everywhere recite a uniform, formulaic confession.  But the individual wrongdoer is not reciting a formula by way of confession; rather, the wrongdoer is expressing in words thoughts and feelings about his or her own behavior.

            Our author assures us that if we diligently engage in the process of repentance that process will be acceptable to God.  Our opportunity to repent wrongdoing is a gift from God, who wants people to be good and to be rewarded for behaving well.

            The process of wrongdoers reconciling with God worked differently when the Temple functioned than it does now.  The crucial event in the Yom Kippur ritual was the goat, chosen by lot and then sent out into the desert.  That action brought atonement for all sins people had repented for, and for “minor” sins even without repentance. It brought atonement for deliberate and inadvertent sins, sins the wrongdoer knew about and did not know about.  The goat did not atone for major sins the wrongdoer did not repent for.  Acts punishable by death or karet, as well as vain or false oaths, are not minor sins.  Everything else is a minor sin.  We have encountered the notion of atonement accomplished through the Temple ritual even when the wrongdoer has not repented, and it continues to seem somewhat mysterious.

            Once the Temple stopped functioning the only part of the process left to us is repentance.  Our author says repentance is enough.  Even someone who lived a wicked life can be forgiven if the person repents.  But the author emphasizes that where the wrongdoing had a victim the wrongdoer must make restitution and seek forgiveness from the victim.

            Also, there are twenty four wrongs which interfere with repentance.  The author does not say what they are. Our text of Sefer haHinnuch attributes this list to the Tosephta. No such list appears in our texts of the Tosephta, but Rambam has just such a list in the Mishneh Torah, Hilchot T’shuvah 4.  The list includes people who lead others into wrongdoing, people who do not respect legitimate authority, people who harm others and cannot identify the harmed folks, people who do wrong acts that seem minor but are not, and people whose wrongdoing is especially hard to give up.

            Much of what the author says in this mitzvah/essay is familiar to us from High Holiday sermons, but the author ends on a topic which is rarely discussed.  Someone who is gravely ill is encouraged to confess lest the person die without having repented.  The patient might understandably resist this suggestion hoping that recovery is likely.  But the patient’s caregivers encourage the patient to confess, explaining that many have confessed and recovered, and that confession might add to the patient’s merit and make recovery more likely.  The patient should confess verbally if he or she is able, or silently if necessary.  Our author cites Ramban for a potential text a gravely ill person should use to confess.  My commenting on it could only detract from its meaning and emotional force.