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Class Notes - Class #9

Mitzvah #405 requires hearing the shofar on Rosh haShannah.  The source verse, Num. 29:1, calls the first day of Tishri “yom t’ruah,” “the day of horn sound,” but doesn’t say what kind of horn.  The midrash halachah looks to Lev. 25:9, discussing yovel, where the verses identifies t’ruah with shofar.

            Some of what our author says by way of shoresh is familiar from countless High Holiday sermons, but some of what he says is new, at least to me.  As physical beings, we respond to physical stimuli, and shofar was a signal something crucially important was happening.  We are called to pay careful attention to our relationship with God and to improve our behavior.   We think of Rosh haShannah as a day when God is judging us, and shofar helps remind us that if we shape up God, who wants His creatures to succeed, will be gracious and forgiving.  The author also sees the curved shape of the shofar as a symbolic reminder to us that we need to reshape our behavior, change our direction.

            And the author focuses on the actual t’ruah sound of the shofar, a sound that mimics the sound of people crying.  The author says the sound of how people cry is culturally determined. Over time, different communities adjusted the t’ruah to a sound that matched their own sense of what crying sounded like.  But that left different communities blowing the shofar differently, so to maintain the unity the practice Rabbi Abahu decided that each community should mimic all the possibilities.  Our t’ruah, a series of short sounds, is how some cultures cry.  Our shvarim, three longer sounds, reflects how other people cry.  Some cultures do both, so we blow the shofar in a combination of those sounds.  In whatever way each of us is used to hearing people cry in fear and pain, the shofar will be blown to remind us of that.

            The author sprinkles details about shofar throughout the mitzvah/essay.  The shofar must be long enough so that when the person blowing it holds it, both ends of the shofar are visible around his hands.  A shofar is acceptable even if its walls have been shaved very thin.  There are also questions for further study about various qualifications for an appropriate shofar.  At the end of the essay, the author explains that someone obligated to hear the shofar must hear at least three sets of three blasts sometime during the day of Rosh haShannah. Interruptions are not a problem unless those interruptions are unacceptable shofar blasts. 

            The author gives a full discussion of which animals’ horns can be used to make a shofar.  In theory, the horn of any animal would qualify if the horn grows on the animal with a hollow interior space, although that space can have some bony structure.    Cow horns are disqualified based on a Biblical verse which calls a cow horn a “keren” rather than a shofar.  The only animals the author knows of that qualify are sheep and goats.  But Dan. 8:5 calls a goat horn a keren, which might seem to disqualify goat horns, too.  Our author says that is poetic language designed to make the goat horn sound especially strong, and therefore ought not to disqualify a goat horn.  The author shares his enthusiasm for this notion because, apparently, he just recently learned this approach. 

            The author also describes a dispute about blowing the shofar if Rosh haShannah falls on Shabbat.  One would expect that the positive, specific mitzvah to hear the shofar on Rosh haShannah would override any rabbinic prohibitions on Shabbat.  But the rabbis forbade blowing the shofar if Rosh haShannah falls on Shabbat lest, in their enthusiasm to do the mitzvah, people would inadvertently carry a shofar from place to place in violation of a d’oraita Shabbat prohibition.  But the rabbis created an exception, allowing the shofar to be blown in a major beit din.  Perhaps the rabbis assumed members of the beit din would be especially careful, or perhaps the rabbis wanted to make sure they themselves could hear the shofar.  That leaves the question of what qualifies as a major beit din.  The author says Rabbi Isaac Alfasi would blow shofar in his beit din if Rosh haShannah fell on Shabbat. Alfasi lived most of his life in North Africa and died in 1103.  Rambam holds only a beit din consisting of scholars with s’michah in a direct line from Moses, and which has the authority to determine the beginning of the new month, may blow the shofar on Shabbat.  That would disqualify any beit din outside of Israel, and any beit din functioning after s’michah had been discontinued.  Alfasi should not have blown shofar according to Rambam.  The author does not take sides in the dispute but he encourages his son to analyze the arguments and take sides.  We see our author’s encouraging attitude, this time with the added aspect that the author shares his own enthusiasm for something he recently learned.  We can almost see him smiling.

            Hearing the shofar on Rosh haShannah is a positive mitzvah that has to be done at a specific time, so women are not required by the Torah to hear the shofar on Rosh haShannah.

 

Mitzvot # 406 – 407 return us to the topic of keeping our word.  Mitzvah #30 prohibits taking a useless oath, shvu’a.  In that mitzvah/essay the author taught us to distinguish a shvu’a from a neder.   We will see several more mitzvot about keeping our word later in our study.

Mitzvah #407 prohibits us from breaking a formal vow we have made about any topic, whether about personal matters or promises of gifts to sacred institutions.  The author points out that this mitzvah only requires us to fulfill formal vows, it does not require us to fulfill other less formal promises.  But the author forcefully explains his attitude toward those who do not keep their word.  That behavior is repugnant, and only the worst kind of person would break his or her word.

            We have seen binding promises in several different categories: shvu’a, neder, herem.  Words that typically describe a vow, like nazir or korban, can also identify a binding promise. But someone can make a binding vow using formal language or any substitute language that would be understood to be a synonym even if the speaker did not pronounce the language quite precisely.  If someone hearing the statement would understand a statement to be a vow, the statement is a vow.

            There are social situations where someone uses the formal language of a vow but everyone knows the speaker doesn’t mean it.  In those cases there is no binding vow.  The author gives the names of four examples mentioned in the Mishnah (luckily for some of us, the translator explains them): 1. vowing during the process of haggling over prices, 2. vowing while exaggerating in telling a story, 3. vowing that the speaker had not done something while the speaker has forgotten that he or she had done the thing, 4. vowing while putting pressure on someone to do something.  In all those situations, an ordinary audience would be quite sure the speaker did not seriously mean the vow.  But if the speaker goes on to make it clear the vow was serious, the vow becomes binding. Someone who makes a vow can repudiate it if the person does so within the time it takes to say a few words, but not thereafter. 

            Someone might make a vow and it is not entirely clear what the vow meant.  If the vow is ambiguous we accept the explanation of the person who made the vow as to what the vow meant. Absent an explanation, we take the strictest interpretation of the vow.  In general we take the vow to mean what reasonably people from that locality would understand it to mean and we look very carefully at exactly what the speaker said.

            Apparently vows not to benefit from someone or something were common, as the halachic sources often discuss such vows.  Our author includes some rules about those vows by way of example.  If someone vows not to eat meat, the person may eat gravy from that meat, but if someone vowed not to eat a specific piece of meat the person may not eat the gravy from that meat.  If someone vowed not to have benefit from a specific person, if the person who made the vow owes a debt, the other person may pay the debt.  That is not considered a benefit, just the removal of an obligation.    

            The author says something puzzling in describing the punishment for breaking a vow.  He says that someone who violates this mitzvah is not punishable because the violation consists only of speech.  That makes sense if someone vowed to do something and then doesn’t do it, where no action but speech is involved.  It doesn’t seem to make sense where the person vowed not to do something and then does that thing, where the violation of the mitzvah is the act of doing the thing.  For example, if someone vows not to each chocolate and then eats chocolate, it is the act or eating that breaks the vow and violates mitzvah #407.

            With all of that pressure on someone who makes a vow to follow through, mitzvah #406 gives some people who take vows a possible way out.  Start with the source verses, Num. 30: 3-17, which covers several applications of this mitzvah that our author only touches on. 

1.        If an underage girl, unmarried and still living in her father’s house, makes a vow, her father can annul it if he hears about it soon enough and chooses to annul it.

2.      If a married woman makes a vow, her husband can annul it if he hears about it soon enough and chooses to annul it.  A husband can only annul his wife’s vow if the vow affects the husband or if her vow required her to afflict herself.

In those two cases, the father or husband has the option to annul the vow, but only if he chooses to. 

            Third, a vow might be annulled by appeal to the discretion of a learned scholar.  There is no explicit source verse to support this method.  Nevertheless, our author follows Rambam, who counts among the mitzvot a positive mitzvah on the people annulling vows to follow the appropriate rules.  Someone who annuls a vow inappropriately breaks mitzvah #406 and does not succeed in annulling the vow.  Ramban does not consider this a separate mitzvah, but rather considers it an exception that is part of mitzvah #407 which requires us to fulfill our vows. 

Only certain people are qualified to annul the vows of others.  Originally vows could be annulled by a scholar with s’michah in the line begun by Moses, or anyone authorized to annul vows by someone with s’michah.  With the demise of s’michah, according to some authorities the job could be done by any male learned scholar.  A group of three ordinary adult Jewish men could also annul someone’s vow, but apparently at least one of them has to have learned about the rules for annulling vows. 

The learned scholar does not have complete discretion to annul the vow.  Rather, the scholar may only annul the vow if the person wants the vow annulled for certain specified reasons.  First, the scholar can annul a vow if the vow was made in error; some new situation arose that leads the person who made the vow to feel that, “If I knew then what I know now, I would never have made the vow.”  Second, the scholar can annul the vow if the vow was made under some sort of compulsion.  For example, a person makes a vow in anger, and then calms down and entirely regrets that the vow had ever been made.  This is very subtle stuff, since perforce someone seeking to have a vow annulled regrets having made the vow.  It is hardly a surprise that trying to distinguish one type of regret from another is difficult.

Someone who has vowed a donation to sacred causes or charity can have that vow annulled.  Similarly someone who made a vow regarding giving t’rumah or hallah to a particular cohen may have that vow annulled.  But in all those cases the vow can only be annulled while the promised items are still in the hands of the person taking the vow.  Once the promised goods have changed hands, though, the vow cannot be annulled.  For a vow to give charity, if the charity collector already has the donation, the vow cannot be annulled even if the charity has not yet reached the intended beneficiary.

But the author says that although those are the rules in theory, in practice scholars in his community only accepted much narrower grounds for annulling vows.  Vows made in social situations that made it clear the speaker did not really mean to make a binding promise were considered void.  Otherwise scholars would only annul vows that involved mitzvot, but would not annul other vows, for example vows in which someone swore off something pleasurable.

 

The next series of mitzvot deal with the related topics of judicial rules about murder cases, the cities of the levi’im, and the institution of “arei miklat,” “cities of refuge” for someone who inadvertently kills someone else.  We need the mitzvot about the cities of the levi’im and about murder trials as background to understand arei miklat.  We also need to understand that the alternative to arei miklat was blood feud.  If someone killed someone from my family, someone in my family will try to kill someone else from the killer’s family.  That sort of bloodshed continues forever, with no way to end the killing.  So the Torah provides and alternative.  If someone kills intentionally, the killer is subject to the death penalty.  (This seems to depend on a court being willing to actually punish murderers.)  If someone kills inadvertently, the person is sentenced to go into exile into the ir miklat and stay there until the cohen gadol dies.  The victim’s family knows that the killer is being punished and so will not take revenge on the family of the killer.  If someone sentenced to go to the ir miklat does not do so, the family of the victim has the right to take his or her life. 

            Mitzvah #408 requires the other tribes to allocate 48 cities scattered throughout Israel to the levi’im in place of tribal inherited agricultural land.  We saw in mitzvah #342 that the cities of the levi’im were subject to zoning restrictions aimed at making them attractive and convenient.  The mitzvah to allocate these cities falls on the entire community, especially on the leaders who handle such matters.  It is in effect when all the tribes are settled in Israel.

Six of those cities were arei miklat, although the other cities also provided an unintentional murderer protection under some circumstances.  We will return to this topic in mitzvah #520. 

            In the shoresh for this mitzvah the author focuses on why the cities of the levi’im were chosen as the refuge for unintentional murderers.  The levi’im were elevated by their special spiritual service.  It was in recognition of their spiritual achievements that the Torah put places of refuge in their territory.  The atmosphere of holiness might help the fugitive to repent of anything he or she had done wrong.  And the levi’im could be counted on to care for and respect the fugitive rather than treating the fugitive badly, even if the fugitive had inadvertently killed a friend or relative of the levi’im.  The levi’im would not be distracted from doing the right thing by personal feelings.  Making the cities of the levi’im the arei miklat was a compliment to the levi’im.

            For the institution of ir miklat to tamp down blood feuds, the judicial system that decides murder cases must be effective and respected.  We have seen other mitzvot about judicial procedure, and we get more information on that topic here.

            Mitzvah #409 prohibits executing someone for murder without trial.  Even if the members of the Sanhedrin witnessed the killing, the killer must still be tried.  If there is some reason to acquit, the defendant should be acquitted.  If there is no reason to acquit, the defendant should be convicted and executed.  In the context of blood feuds, this mitzvah insures that a neutral court will determine if the killing was intentional or unintentional and punish the defendant appropriately. 

            But if someone witnesses an attack the issue of trial takes a back seat to the need to rescue the victim of the attack.  If the only way to rescue the victim is the kill the attacker, the victim or a bystander is required to kill the attacker.  Punishment is one thing, preventing killing is another.  We will return to that case later in our study.

            Mitzvah #411 prohibits a witness in a capital crime from also serving as a judge in that case.  The witness is not neutral; the witness has an interest in seeing his testimony affirmed by the verdict.  We saw earlier that people other than the judges could sometimes take part in the deliberations, but a witness in a capital case may not argue either for acquittal or conviction. 

            This rule does not apply in civil cases, however.  A witness in a civil case may make arguments to the judges.  If the witness’ testimony is required d’oraita the witness may not be a judge but if the witnesses testimony is only required d’rabanan the witness may be a judge.

            Mitzvah #412 provides another way of making murder trials seem credible: someone convicted of murder may not buy his or her way out of execution.  Thus, the family of the victim is assured that if the court finds the defendant guilty of murder the defendant will be executed.  Even if the family of the deceased is willing to let the murderer buy his way out, this mitzvah requires that the convicted defendant be executed.  This mitzvah has another important purpose.  If a convicted murderer can avoid sentence by paying his or her way out, the rich will feel free to murder.  This is inimical to a settled, peaceful community.

            Mitzvot #410 and #413 govern a case where the court decides the killer killed unintentionally and must therefore go to the ir miklat.  Killing someone is a serious matter even if the killing was unintentional, so the killer suffers serious penalty, moving from his or her home to a new place and living among strangers.  Remember that communications and travel were very different in ancient times.  That gets the killer away from the family of the victim, who might be tempted to take revenge if the killer was around.  And the structure of the ir miklat provides protection from a revenge killing as long as the killer stays in the ir miklat.  The beit din has a mitzvah to sentence an unintentional killer to exile in the ir miklat under appropriate circumstances.  If they fail to do so, they bear some responsibility if the victim’s family takes revenge.

            Any Jew might be subject to exile in the ir miklat for killing anyone, even if the victim was a slave or a ger toshav.  An eved c’na’ani who killed another slave or a ger toshav was subject to exile.  A son can be exiled for the unintentional killing of his father, and a father can be exiled for the unintentional killing of his son.  But some people are entitled to use force against others.  A father can physically discipline a child, and a teacher can physically discipline a student.  If the father or teacher kill unintentionally during discipline, the father or teacher are not subject to exile.  If a non-Jew, even a ger toshav, unintentionally kills someone, the penalty is death rather than exile.  We have seen before that the only punishment meted out to non-Jews is death.  That notion begs for explanation, and unfortunately I do not have one.

            The rabbis formulated strict requirements for a killing that would require the perpetrator to be exiled to the ir miklat.  The death must have occurred very promptly after the incident.  If the victim lingered, there was always the possibility that something other than the perpetrator’s action caused the death.  The court has to make sure that the killing was unintentional, that there was no enmity between the killer and victim before the incident.  Another obscure requirement is that a killer is only exiled if the killed with a downward motion, not with an upward motion. 

            Someone exiled to an ir miklat lives as normal a life as possible in the ir miklat, and people associated with the exiled person may have to help make that happen.  If a student is exiled, the student’s Torah teacher goes too.  A husband continues to have some responsibility for the wellbeing of his wife in the ir miklat, and a master continues to have some responsibility for his slave in the ir miklat.  The residents of the ir miklat can choose to honor someone exiled there as long as they know the honoree is an exile.

            There is another rubric of refuge as well.  The altar in the Temple serves as a refuge parallel to the ir miklat for a cohen in service at the Temple holding on to the upper edge of the altar.  The court would send guards to take the cohen from the altar to the ir miklat, but the cohen would remain under the court’s protection so he was not subject to the revenge of the victim’s family.  The altar also provides refuge to anyone fleeing death at the hands of the king. The author cites this topic to Rambam, but there is no obvious Biblical source.

            The killer remains in the ir miklat until the cohen gadol dies.  Then the killer is free to leave and a member of the victim’s family would be subject to the death penalty for killing him.  If an unintentional killer dies before getting to the ir miklat, the killer’s body is buried there.

            Just as there is a prohibition on allowing a convicted murderer to buy off punishment, there is a prohibition in mitzvah #413 on allowing a killer sentenced to exile in an ir miklat to buy off the punishment.

 

We have reached the end of the mitzvot in the book of Numbers.  Note the sweet couplet.  We will begin Deuteronomy and its mitzvot in our next class.

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