The
first Dvar Torah of the week relates to the beginning of the Parsha. We have
the Lav of 25:17 (וְלֹא תוֹנוּ אִישׁ אֶת-עֲמִיתוֹ). This Lav prohibits someone from causing
pain to someone else with words. Onoas Devarim is what the Posuk is referring
to.
The
question is whether someone who is in violation of this Lav gets Malkus. We
know that in general that if somebody violates a Lo Sasei, the punishment is
Malkus in Bais Din. The question on (וְלֹא תוֹנוּ אִישׁ אֶת-עֲמִיתוֹ) is, does a person get Malkus or not?
The
Chinuch says a person does not get Malkus because it is a Lav She’ain Bo Mayseh.
It is a Lav that has no action. It is done with words alone, and one of the
exceptions of not getting the punishment of Malkus is a Lav She’ain Bo Mayseh.
The
problem is that the Chofetz Chaim in the Sefer Chofetz Chaim, in the Pesicha
where he counts the different prohibitions that a person violates when he
speaks Lashon Hora, he counts there in Os 17 the Lav of a (וְלֹא תוֹנוּ אִישׁ אֶת-עֲמִיתוֹ). There the Chofetz Chaim mentions
incidentally that someone who is Over (וְלֹא תוֹנוּ אִישׁ אֶת-עֲמִיתוֹ) does not get Malkus because it is a Lav Shebiklalos (which is
one of the other exceptions to Malkus). It is a Pliya. Why doesn’t the Chofetz
Chaim give the Chinuch’s reason that it is a Lav She’ain Bo Mayseh?
Rav
Shlomo Zalman Auerbach in Minchas Shlomo in Teshuva 81 mentions this Kasha.
The
Sefer Moshchas Shemen has a beautiful Teretz. This Teretz requires knowledge of
a Yesodosdika Machlokes Rishonim. In the Dinim of Lav She’ain Bo Mayseh there
is a fundamental Machlokes between the Rambam and the Sefer Hachinuch. If you
have a Lav which is typically a Lav She’ain Bo Mayseh. But which person can be
Over with a Mayseh? Does he get Malkus for that?
For
example, there is a prohibition of Bal Yei’ra’e Ubal Yimatzei, owning Chometz
on Pesach. Typically it is a Lav She’ain Bo Mayseh. Someone who owns Chometz
before Pesach and doesn’t do anything to get rid of it is Over on Bal Yei’ra’e
Ubal Yimatzei as soon as Pesach begins. It is a Lav She’ain Bo Mayseh. However,
it is possible to be Over the Aveira by doing a Mayseh, if someone goes into
the store and buys Chometz on Pesach he is Over on Bal Yei’ra’e Ubal Yimatzei
with a Mayseh.
The Rambam
in the first Perek of Hilchos Chometz Umatzah says that such a person gets
Malkus. Obviously the Rambam holds that a Lav She’ain Bo Mayseh does not get
Malkus only if you do it without a Mayseh. If you do it with a Mayseh then
there is Malkus. The Chinuch disagrees. The Chinuch holds that Bal Yei’ra’e
Ubal Yimatzei is typically a Lav She’ain Bo Mayseh so there is no Malkus.
It does
not matter if in one particular instance an individual did it through a Mayseh,
it is already a Lav She’ain Bo Mayseh. In Lomdus we call this a Siman, in other
words the Chinuch holds that an Ain Bo Mayseh is a Siman of which Mitzvos don’t
get Malkus. Typically, since Bal Yei’ra’e Ubal Yimatzei is a Lav She’ain Bo
Mayseh you wouldn’t get Malkus even if you do it with a Mayseh.
The
Rambam holds that Ain Bo Mayseh is a Siba, it is a reason not to get Malkus.
Because you did no Mayseh there is no Malkus. If the person did the Aveira with
a Mayseh he gets Malkus. Hence there is a Machlokes between the Rambam and the
Chinuch regarding a Lav which is typically without a Mayseh which someone does
with a Mayseh is he Chayuv Malkus or not.
Let’s
return to (וְלֹא תוֹנוּ אִישׁ
אֶת-עֲמִיתוֹ). There is a Lav
in the Torah of Onoas Devarim causing someone else pain. The Ohr Hachaim
Hakodesh writes that when someone is Over on Onoas Mamon, when someone cheats
someone else in business, besides the Mitzvah of Onoas Mamon he is also Over on
Onoas Devarim, because in his action he caused a person pain, and that is not
less than through words.
The Ohr
Hachaim Hakodesh says that on Karka on which there is no Din of Anoas Mamon
there is an Issur of Onoas Devarim. Which means that (וְלֹא תוֹנוּ אִישׁ אֶת-עֲמִיתוֹ) is an Aveira which a person could be Over with a Mayseh. For
example, if someone were to spit in someone’s face he would be Over the Issur
of (וְלֹא תוֹנוּ אִישׁ
אֶת-עֲמִיתוֹ). So that this is
an Issur which fundamentally is Onoas Devarim without a Mayseh but which of
course could occur with a Mayseh.
Now we understand,
the Chinuch L’shitaso says this is Lav She’ain Bo Mayseh, since the typical
case of Onoas Devarim is through words alone it is a Lav She’ain Bo Mayseh
which never gets Malkus even with a Mayseh. The Chofetz Chaim wanted to give a
reason that would be true even according to the Rambam and therefore he gave
another reason for (וְלֹא תוֹנוּ
אִישׁ אֶת-עֲמִיתוֹ) being a
Lav She’ain Bo Malkus and his reason is it is a Lav Shebiklalos. We gain an
insight into the Chofetz Chaim’s words and more importantly the knowledge of a
basic Machlokes the Chinuch and the Rambam which comes up a number of times in
the Sefer Hachinuch as is pointed out in the Minchas Chinuch in numerous
places.
אין תגובות:
הוסף רשומת תגובה