The Dual Purpose Of Exile - Bechukosai 5771

When we read the Tochacha or the words of the Neviim Achronim we understand that going into Galus was a punishment. It is something which comes because Klal Yisrael is not deserving. Devarim 29:27 says (וַיִּתְּשֵׁם יְ רוָר מֵעַל אַדְמָתָם, בְּאַף וּבְחֵמָה וּבְקֶצֶף גָּדוֹל; וַיַּשְׁלִכֵם אֶל-אֶרֶץ אַחֶרֶת, כַּיּוֹם הַזֶּה). Hakadosh Baruch Hu ripped Klal Yisrael off of its land in anger. Anger sounds like a punishment. Where as we say in this week’s Parsha 26:33 (וְאֶתְכֶם אֱזָרֶה בַגּוֹיִם) that I will scatter you amongst the nations. It certainly sounds like a punishment.

That doesn’t fit with the Baalei Machshava and in general in Torah She’bal Peh. That the Galus itself is purposeful and there is something to be accomplished in the Galus. As the Gemara says in Maseches Pesachim 87b (17 lines from the bottom) (ואמר ר"א לא הגלה הקדוש ברוך הוא את ישראל לבין האומות אלא כדי שיתוספו עליהם גרים שנאמר (הושע ב) וזרעתיה לי בארץ כלום אדם זורע סאה אלא להכניס כמה כורין ור' יוחנן אמר מהכא (הושע ב) ורחמתי את לא רוחמה). Klal Yisrael went to Galus to collect the holy souls among the nations of the world.

As Rav Tzaddok explains in Resisai Laila 84, it doesn’t only mean (גרים) people who convert, but even concepts or energy among the Umos Haolam. We go into Galus sort of to collect these things. The proof to that is that in the Bris Bain Habesarim Avraham Avinu is already foretold about the 4 Galuyos. According to this way of looking at Galus the Galus is purposeful and it is here for constructive reasons and not just a punishment.

That doesn’t fit well with the language of Torah She’b’chsav. For this we turn to Rav Schwab in the Halilukas of Pesukai D’zimra. He explains that Torah She’b’chsav is Middas Hadin and Torah She’bal Peh works with Middas Harachamim.

So to say in the Chumash it says in Parshas Mishpatim 21:24 (עַיִן תַּחַת עַיִן, שֵׁן תַּחַת שֵׁן, יָד תַּחַת יָד, רֶגֶל תַּחַת רָגֶל). An eye for an eye a tooth for a tooth. The Torah She’bal Peh says that is Middas Hadin which is what a person truly deserves, however, there is Middas Harachamim mixed in and therefore it is enough to pay.

In Parshas Ki Sai’tzai it says in 25:12 (וְקַצֹּתָה, אֶת-כַּפָּהּ) a punishment of cutting off a hand, and again the Torah She’b’chsav says cut off the hand while Torah She’bal Peh mixes it with Middas Harachamim and says to pay instead of cutting off a hand.

We find so too with the sins of Gedolei Olam of Klal Yisrael. Where the words of the Chumash say that Reuvain did one Aveira and the Torah She’bal Peh says no it is not quite the way it happened. So too with all of the Aveiras of the Gedolei Yisrael. The Torah She’b’chsav expresses it with Middas Hadin and Torah She’bal Peh is constantly a mixture of Middas Harachamim.

With this Rav Schwab explains that we say in Tehillim 149:8- 9 (לֶאְסֹר מַלְכֵיהֶם בְּזִקִּים; וְנִכְבְּדֵיהֶם, בְּכַבְלֵי בַרְזֶל לַעֲשׂוֹת בָּהֶם, מִשְׁפָּט כָּתוּב-- הָדָר הוּא, לְכָל-חֲסִידָיו:
הַלְלוּ- כָּהּ) That Hakadosh Baruch Hu will punish the Umos Haolam with (מִשְׁפָּט כָּתוּב) the written judgment. What is the difference if the judgment is written or not? He explains that the punishment there is with the Middas Hadin. That is called (מִשְׁפָּט כָּתוּב) the written judgment.

We find similarly by Amaleik in Shemos 17:14 (כְּתֹב זֹאת זִכָּרוֹן בַּסֵּפֶר) that the erasing of Amaleik has to be written in the Sefer. That is with Middas Hadin. So that The Torah She’bal Peh is the mixture of Din and Rachamim and Torah She’b’chsav expresses it with Middas Hadin.

With this we can understand that the Tochacha and all of the Nivuos regarding the Galus are written with Middas Hadin. There is no Sheker in it. It is that Klal Yisrael deserves this as a punishment. So the Ribbono Shel Olam doesn’t do anything to Klal Yisrael unless there is Middas Rachamim mixed in as well.

Who's Got The Bumper Crop? - Behar 5771

Hakadosh Baruch Hu assures us in 25:21 (וְצִוִּיתִי אֶת-בִּרְכָתִי לָכֶם, בַּשָּׁנָה הַשִּׁשִּׁית; וְעָשָׂת, אֶת-הַתְּבוּאָה, לִשְׁלֹשׁ, הַשָּׁנִים). Hakadosh Baruch Hu assures us that he will give us enough produce in the 6th year to last for the 7th year which is Shmitta and the 8th year which is Yovel so that we can make it through the 3 years. There is a famous Vort here in the Seforno and others quote it, that for a Baal Bitachon, (אוכל קמעא והוא מתברך במעיו) Ochel Kima Umisbarach B’mai’av as it says in Rashi to 26:5, the 6th year will grow a regular crop, but miraculously it will last for 3 years. However, as the Seforno says for the ordinary person if he says 25:20 (וְכִי תֹאמְרוּ, מַה-נֹּאכַל בַּשָּׁנָה הַשְּׁבִיעִת:  הֵן לֹא נִזְרָע, וְלֹא נֶאֱסֹף אֶת-תְּבוּאָתֵנוּ). Meaning he is afraid and asks what will I eat in the 8^th year, for such a person the Posuk goes on and says (וְצִוִּיתִי אֶת-בִּרְכָתִי לָכֶם, בַּשָּׁנָה הַשִּׁשִּׁית; וְעָשָׂת, אֶת-הַתְּבוּאָה, לִשְׁלֹשׁ, הַשָּׁנִים). Then 3 years worth of crop will grow and you will have plenty of Tevua to eat in the 6^th year.

We have a bit of a problem because we understand that this Beracha is only for the Shomrei Sheviis. Those who keep Shemitta have this Beracha of an excessive crop in the 6^th year. But one minute.  In the 6^th year we do not yet know who will be keeping the Shemitta and who will be keeping the Yovel. At that time it is still a time of Nisayon. This Posuk the Seforno explains is talking about someone who is afraid (וְכִי תֹאמְרוּ, מַה-נֹּאכַל בַּשָּׁנָה הַשְּׁבִיעִת).

The question is, whose crop grew in the 6^th year, 3 fold what is normal? Whose crop grew in excess? It would seem that even those that keep Shemitta would have this extra crop. Hakadosh Baruch Hu knows who will keep Shemitta and who will not, however, it doesn’t make sense to say that in the 6^th year, for those who are about to keep Shemitta 3 years worth grew and for those who would not keep Shemitta only one year’s worth of crop grew. Just for those people who 3 years grew it was already Paskened in Shamayim that they wouldn’t keep Shemitta? For whom did it happen that (וְעָשָׂת, אֶת-הַתְּבוּאָה, לִשְׁלֹשׁ, הַשָּׁנִים)? Unless you say that everyone had the big crop, even those that kept Shemitta.

Malkus On A Lav Sh'ein Bo Ma'aseh - Behar 5771

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.

The Lomdus Of Mored B'Malchus - Bechukosai 5770

27:28 & 29 כח  אַךְ-כָּל-חֵרֶם אֲשֶׁר יַחֲרִם אִישׁ לַירוָר מִכָּל-אֲשֶׁר-לוֹ, מֵאָדָם וּבְהֵמָה וּמִשְּׂדֵה אֲחֻזָּתוֹ--לֹא יִמָּכֵר, וְלֹא יִגָּאֵל:  כָּל-חֵרֶם, קֹדֶשׁ-קָדָשִׁים הוּא לַיֶרוֶָר כט  כָּל-חֵרֶם, אֲשֶׁר יָחֳרַם מִן-הָאָדָם--לֹא יִפָּדֶה:  מוֹת, יוּמָת There is an idea of Cheirim. What is this Cheirim referring to? 

There is a Yesod Gadol here in the Ramban which is an important idea to know for the learning of Tanach. This point is then taken to explain many difficult Parshas in Tanach. The Ramban explains that this Posuk is teaching us a new Mitzvah in the Torah which is that Klal Yisrael as a whole is allowed to create new Issurin to the point of Mos Yumas. Meaning that you can give a Chiyuv Misah through a Cheirim. 

The Ramban himself explains with this a number of Parshiyois in Nach. We find at the end of Sefer Shoftim in Perek 21, That an entire city of Yaveish Gilad as brought down in 21:10 is killed out by soldiers of Klal Yisrael, י  וַיִּשְׁלְחוּ-שָׁם הָעֵדָה, שְׁנֵים-עָשָׂר אֶלֶף אִישׁ--מִבְּנֵי הֶחָיִל; וַיְצַוּוּ אוֹתָם לֵאמֹר, לְכוּ וְהִכִּיתֶם אֶת-יוֹשְׁבֵי יָבֵשׁ גִּלְעָד לְפִי-חֶרֶב, וְהַנָּשִׁים, וְהַטָּף  There was a specific cause that everyone was to join and this city didn’t join and was put into Cheirim. What right did they have to kill out an entire city? The Ramban says that right is based on our Posuk. 

We find also in Shmuel 1 Perek 14, that Yonason the son of Shaul is participating in a day of battle, and he ate during the day. In Posuk 44 Shaul says he is Chayuv Misah, מד  וַיֹּאמֶר שָׁאוּל, כֹּה-יַעֲשֶׂה אֱלֶֹרים וְכֹה יוֹסִף:  כִּי-מוֹת תָּמוּת, יוֹנָתָן מה  וַיֹּאמֶר הָעָם אֶל-שָׁאוּל, הֲיוֹנָתָן יָמוּת אֲשֶׁר עָשָׂה הַיְשׁוּעָה הַגְּדוֹלָה הַזֹּאת בְּיִשְׂרָאֵל--חָלִילָה חַי-יְרוָר אִם-יִפֹּל מִשַּׂעֲרַת רֹאשׁוֹ אַרְצָה, כִּי-עִם-אֱלֹרים עָשָׂה הַיּוֹם הַזֶּה; וַיִּפְדּוּ הָעָם אֶת-יוֹנָתָן, וְלֹא-מֵת  There had been a Gezaira by Shaul not to eat on the day of battle. Yonason didn’t know about this Gezaira and ate. The Posuk has to tell us that the people had to come together and find a way how to save Yonason from this Cheirim. What was the thought to kill him for eating something? The Ramban says it is based on our Posuk. 

The Chasam Sofer in a Teshuva in Orach Chaim 208 has a letter to the Maharitz Chayes which explains the concept of Mored B’malchus. We all know that someone who rebels against the king is Chayuv Misah. Where in the Torah do we find such a concept? The Chasam Sofer says that it comes from this Posuk (quoted above 27:29), from this Ramban. Anyone who is Mored B’malchus is violating a Takanah that was made right after Moshe Rabbeinu’s death in Sefer Yehosua 1:18  יח  כָּל-אִישׁ אֲשֶׁר-יַמְרֶה אֶת-פִּיךָ, וְלֹא-יִשְׁמַע אֶת-דְּבָרֶיךָ לְכֹל אֲשֶׁר-תְּצַוֶּנּוּ--יוּמָת:  רַק, חֲזַק וֶאֱמָץ This was a Cheirim made against any Mored B’malchus and the Chasam Soifer says that is the basis that gives the right to kill anybody who rebels against the king.  

The Maharitz Chayes himself disagrees and the Netziv in Ha'emek She'eila Siman 142:9 agrees with the Maharitz Chayes and they have a second Pshat on Mored B’malchus. They hold that anyone who is Mored B’malchus is endangering the whole Klal Yisrael and we know that anyone who endangers Klal Yisrael has a Chiyuv Misah. 

So it turns out that we have 2 Peshatim in Mored B’malchus; 1) the Chasam Sofer who says it is a Din Cheirim and 2) the Netziv who says it is a Din of a Roidef. 

One of the differences (Nafka Minah’s) are if you have to go to Bais Din so that they Pasken that he is Chayuv Misah. Tosafos in a few places in Shas is Mesupeik. According to the Chasam Sofer’s Pshat that it is a Cheirim you have to go to Bais Din like any other Chiyuv and Pasken. However, according to the Netziv that it is a Din Rodef, you don’t have to go to Bais Din. 

With this we can explain beautifully a Gemara in Maseches Megilla Daf 14a where it talks about Dovid’s intention to kill Naval Hakermeli for being Mored B’malchus אמרה לו וכי דנין דיני נפשות בלילה אמר לה מורד במלכות הוא ולא צריך למידייניה אמרה לו עדיין שאול קיים ולא יצא טבעך בעולם. Naval’s wife Avigail argues that he should not be killed. First she says can Dovid Pasken Dinei Nifashois at night? To which Dovid replies Mored B’malchus Hu and we don’t have to sit in judgment. Avigail then says Shaul is still alive so even though you are legally the king as Shmuel had already appointed Dovid as a King, he had done it secretly, so since it is not known there is not a Din of Mored B’malchus. 

The question that everyone asks is, why did Avigail first ask how can Dovid Pasken Dinei Nefashos at night, which is an inferior argument and not say right away that you Dovid are not known as the king yet? 

According to what we just discussed the Gemara is so Geshmak. There are 2 Dinim in a Mored B’malchus. The Chasam Soifer’s Din of Cheirim and the Netziv and the Maritz Chiyus Din of Ridef. So what happened? Avigail came and said there is a Din Cheirim, then you need a Bais Din. Meaning will Dovid Pasken Dinei Nefashos at night? To which Dovid replied, no he is a Mored B’malchus and therefore, does not need to have a Bais Din to Pasken. Meaning he is a Rodef and doesn’t need a Din Toirah. On the Din Rodef Avigail answers that Shaul is still alive and it is not known that you are king, Dovid. 

When do we say a Mored B’malchus has a Din Rodef? Only when he is endangering the public, because then the people won’t have respect for the king. In this case Dovid, you may legally be king but since it is not known there is no Din Rodef. She couldn’t present this argument first because the Din Cheirim would still apply and she had to argue first on that, meaning will you Dovid Pasken Dinei Nefashos at night. It is a very Geshmake understanding of a concept of Mored B’malchus which explains this Gemara and others as well.

The Rambam's Shita Of Safek D'Oraysa - Bechukosai 5770

27:32 לב  וְכָל-מַעְשַׂר בָּקָר וָצֹאן, כֹּל אֲשֶׁר-יַעֲבֹר תַּחַת הַשָּׁבֶט--הָעֲשִׂירִי, יִהְיֶה-קֹּדֶשׁ לַירוָה  In Maseches Bava Metzia, Chazal learn from the word Asiri that only Asiri Vadai and not Asiri Safeik is Kodesh. Only the tenth animal that is certain is Koidesh Lashem.  We learned in that Sugya about one animal that jumped back into the corral after already being counted.

The Rambam’s Shittah is that Min Hatorah every Safeik D’oraissa is L’kula. Meaning that the idea that we have that every Safeik D’oraissa is L’chumra is itself a D’rabanan. However, the Din D’oraissa is that Safeik D’oraissa L’kula.

The Kasha that Rishonim ask on the Rambam is, if so why do I need a Posuk to teach us Asiri Vadai V’loi Asiri Safeik? I thought every Safeik D’oraissa is L’kula, not only Asiri Vadai V’lo Asiri Safeik?

The Chavas Da’as at the end of the first volume in Yoreh Dai’a after Siman 110 in the section of Bais Hasafeik explains the Rambam’s Shittah. What is the logic of Safeik D’oraissa is L’kula? When the Torah says to not eat Nevaila and Teraifa it means something that is certainly Nevaila and Teraifa. Something that is Safeik Nevaila is not included in the Torah’s prohibition. That is why the Rambam holds Safeik D’oraissa is L’kula. When the Torah says don’t wear Shatneiz it means don’t wear something that is certainly Shatneiz. Something that is Safeik Shatneiz doesn’t have a prohibition. This that the Gemara Darshuns that Asiri Vadai and not Asiri Safeik, the Chavas Da’as says this is not a special Drasha from an extra Posuk here. It is really the general rule that whenever the Torah expresses something it is only expressed Mitoiras Vadai. By our Posuk only the tenth animal that is certain to be the tenth animal is Koidesh.

This Drasha is true elsewhere as well.  We gain with this Chiddush of the Chavas Da’as that the Rambam’s Shittah that Safeik D’oraissa is L’kula, is only by Issurin and not by Mitzvois. The Torah says take an Esrog, Pri Eitz Hadar. A Safeik Pri Eitz Hadar you might think is acceptable according to the Rambam because Safeik D’oraissa is L’kula. The Chavas Da’as says no. When the Torah says that you must take an Esrog, you must take that which is a Vadai Pri Eitz Hadar. Therefore, the Rambam’s rule only applies to Issurin of Safeik D’oraissa is L’kula and not to Mitzvos that are a Maiseh (you must DO something).