Torah Reading
Re'eh (Deuteronomy 11:26 “See, I am setting before you today a blessing and a curse — 27 the blessing, if you listen to the mitzvot of Adonai your God that I am giving you today; 28 and the curse, if you don’t listen to the mitzvot of Adonai your God, but turn aside from the way I am ordering you today and follow other gods that you have not known.
29 “When Adonai your God brings you into the land you are entering in order to take possession of it, you are to put the blessing on Mount G’rizim and the curse on Mount ‘Eival. 30 Both are west of the Yarden, in the direction of the sunset, in the land of the Kena‘ani living in the ‘Aravah, across from Gilgal, near the pistachio trees of Moreh. 31 For you are to cross the Yarden to enter and take possession of the land Adonai your God is giving you; you are to own it and live in it. 32 And you are to take care to follow all the laws and rulings I am setting before you today.
12:1 Here are the laws and rulings you are to observe and obey in the land Adonai, the God of your ancestors, has given you to possess as long as you live on earth. 2 You must destroy all the places where the nations you are dispossessing served their gods, whether on high mountains, on hills, or under some leafy tree. 3 Break down their altars, smash their standing-stones to pieces, burn up their sacred poles completely and cut down the carved images of their gods. Exterminate their name from that place.
4 “But you are not to treat Adonai your God this way. 5 Rather, you are to come to the place where Adonai your God will put his name. He will choose it from all your tribes; and you will seek out that place, which is where he will live, and go there. 6 You will bring there your burnt offerings, your sacrifices, your tenths [that you set aside for Adonai], the offerings that you give, the offerings you have vowed, your voluntary offerings, and the firstborn of your cattle and sheep. 7 There you will eat in the presence of Adonai your God; and you will rejoice over everything you set out to do, you and your households, in which Adonai your God has blessed you. 8 You will not do things the way we do them here today, where everyone does whatever in his own opinion seems right; 9 because you haven’t yet arrived at the rest and inheritance which Adonai your God is giving you. 10 But when you cross the Yarden and live in the land Adonai your God is having you inherit, and he gives you rest from all your surrounding enemies, so that you are living in safety; (ii) 11 then you will bring all that I am ordering you to the place Adonai your God chooses to have his name live — your burnt offerings, sacrifices, tenths, the offering from your hand, and all your best possessions that you dedicate to Adonai; 12 and you will rejoice in the presence of Adonai your God — you, your sons and daughters, your male and female slaves and the Levi staying with you, inasmuch as he has no share or inheritance with you.
13 “Be careful not to offer your burnt offerings just anywhere you see, 14 but do it in the place Adonai will choose in one of your tribal territories; there is where you are to offer your burnt offerings and do everything I order you to do. 15 However, you may slaughter and eat meat wherever you live and whenever you want, in keeping with the degree to which Adonai your God has blessed you. The unclean and the clean may eat it, as if it were gazelle or deer. 16 But don’t eat the blood; pour it out on the ground like water.
17 “You are not to eat on your own property the tenth of your grain, new wine or olive oil [that you set aside for Adonai], or the firstborn of your cattle or sheep, or any offering you have vowed, or your voluntary offering, or the offering from your hand. 18 No, you are to eat these in the presence of Adonai your God in the place Adonai your God will choose — you and your sons, daughters, male and female slaves, and the Levi who is your guest; and you are to rejoice before Adonai your God in everything you undertake to do. 19 As long as you are living on your property, take care not to abandon the Levi.
20 “When Adonai your God expands your territory, as he has promised you, and you say, ‘I want to eat meat,’ simply because you want to eat meat, then you may eat meat, as much as you want. 21 If the place which Adonai your God chooses to place his name is too far away from you; then you are to slaughter animals from your cattle or sheep, which Adonai has given you; and eat on your own property, as much as you want. 22 Eat it as you would gazelle or deer; the unclean and clean alike may eat it. 23 Just take care not to eat the blood, for the blood is the life, and you are not to eat the life with the meat. 24 Don’t eat it, but pour it out on the ground like water. 25 Do not eat it, so that things will go well with you and with your children after you, as you do what Adonai sees as right. 26 Only the things set aside for God which you have, and the vows you have vowed to make, you must take and go to the place which Adonai will choose. 27 There you will offer your burnt offerings, the meat and the blood, on the altar of Adonai your God. The blood of your sacrifices is to be poured out on the altar of Adonai your God, and you will eat the meat. 28 Obey and pay attention to everything I am ordering you to do, so that things will go well with you and with your descendants after you forever, as you do what Adonai sees as good and right.
(iii) 29 “When Adonai your God has cut off ahead of you the nations you are entering in order to dispossess, and when you have dispossessed them and are living in their land; 30 be careful, after they have been destroyed ahead of you, not to be trapped into following them; so that you inquire after their gods and ask, ‘How did these nations serve their gods? I want to do the same.’ 31 You must not do this to Adonai your God! For they have done to their gods all the abominations that Adonai hates! They even burn up their sons and daughters in the fire for their gods!
13:1 (12:32) “Everything I am commanding you, you are to take care to do. Do not add to it or subtract from it.
2 (1) “If a prophet or someone who gets messages while dreaming arises among you and he gives you a sign or wonder, 3 (2) and the sign or wonder comes about as he predicted when he said, ‘Let’s follow other gods, which you have not known; and let us serve them,’ 4 (3) you are not to listen to what that prophet or dreamer says. For Adonai your God is testing you, in order to find out whether you really do love Adonai your God with all your heart and being. 5 (4) You are to follow Adonai your God, fear him, obey his mitzvot, listen to what he says, serve him and cling to him; 6 (5) and that prophet or dreamer is to be put to death; because he urged rebellion against Adonai your God, who brought you out of the land of Egypt and redeemed you from a life of slavery; in order to seduce you away from the path Adonai your God ordered you to follow. This is how you are to rid your community of this wickedness.
7 (6) “If your brother the son of your mother, or your son, or your daughter, or your wife whom you love, or your friend who means as much to you as yourself, secretly tries to entice you to go and serve other gods, which you haven’t known, neither you nor your ancestors — 8 (7) gods of the peoples surrounding you, whether near or far away from you, anywhere in the world — 9 (8) you are not to consent, and you are not to listen to him; and you must not pity him or spare him; and you may not conceal him. 10 (9) Rather, you must kill him! Your own hand must be the first one on him in putting him to death, and afterwards the hands of all the people. 11 (10) You are to stone him to death; because he has tried to draw you away from Adonai your God, who brought you out of the land of Egypt, out of a life of slavery. 12 (11) Then all Isra’el will hear about it and be afraid, so that they will stop doing such wickedness as this among themselves.
13 (12) “If you hear it told that in one of your cities which Adonai your God is giving you to live in, 14 (13) certain scoundrels have sprung up among you and have drawn away the inhabitants of their city by saying, ‘Let’s go and serve other gods, which you haven’t known,’ 15 (14) then you are to investigate the matter, inquiring and searching diligently. If the rumor is true, if it is confirmed that such detestable things are being done among you, 16 (15) you must put the inhabitants of that city to death with the sword, destroying it completely with the sword, everything in it, including its livestock. 17 (16) Heap all its spoils in an open space, and burn the city with its spoils to the ground for Adonai your God; it will remain a tel forever and not be built again — 18 (17) none of what has been set apart for destruction is to stay in your hands. Then Adonai will turn from his fierce anger and show you mercy, have compassion on you and increase your numbers, as he swore to your ancestors — 19 (18) provided you listen to what Adonai says and obey all his mitzvot that I am giving you today, thus doing what Adonai your God sees as right.
14:1 (iv) “You are the people of Adonai your God. You are not to gash yourselves or shave the hair above your foreheads in mourning for the dead, 2 because you are a people set apart as holy for Adonai your God. Adonai your God has chosen you to be his own unique treasure out of all the peoples on the face of the earth.
3 “You are not to eat anything disgusting. 4 The animals which you may eat are: ox, sheep, goat, 5 deer, gazelle, roebuck, ibex, antelope, oryx and mountain sheep. 6 Any animal that has a separate hoof that is completely divided and also chews the cud, these animals you may eat. 7 But you are not to eat those that only chew the cud or only have a divided hoof. For example, the camel, the hare and the coney are unclean for you because they chew the cud but don’t have a separate hoof; 8 while the pig is unclean for you because, although it has a separate hoof, it doesn’t chew the cud. You are not to eat meat from these or touch their carcasses.
9 “Of all that lives in the water, you may eat these: anything in the water that has fins and scales, these you may eat. 10 But whatever lacks fins and scales you are not to eat; it is unclean for you.
11 “You may eat any clean bird; 12 but these you are not to eat: eagles, vultures, ospreys, 13 kites, any kind of buzzard, 14 any kind of raven, 15 ostriches, screech-owls, seagulls, any kind of hawk, 16 little owls, great owls, horned owls, 17 pelicans, barn owls, cormorants, 18 storks, any kind of heron, hoopoes and bats.
19 “All winged swarming creatures are unclean for you; they are not to be eaten; 20 but all clean flying creatures you may eat.
21 “You are not to eat any animal that dies naturally; although you may let a stranger staying with you eat it, or sell it to a foreigner; because you are a holy people for Adonai your God.
“You are not to boil a young animal in its mother’s milk.
(v) 22 “Every year you must take one tenth of everything your seed produces in the field, 23 and eat it in the presence of Adonai your God. In the place where he chooses to have his name live you will eat the tenth of your grain, new wine and olive oil, and the firstborn of your cattle and sheep, so that you will learn to fear Adonai your God always. 24 But if the distance is too great for you, so that you are unable to transport it, because the place where Adonai chooses to put his name is too far away from you; then, when Adonai your God prospers you, 25 you are to convert it into money, take the money with you, go to the place which Adonai your God will choose, 26 and exchange the money for anything you want — cattle, sheep, wine, other intoxicating liquor, or anything you please — and you are to eat there in the presence of Adonai your God, and enjoy yourselves, you and your household.
27 “But don’t neglect the Levi staying with you, because he has no share or inheritance like yours. 28 At the end of every three years you are to take all the tenths of your produce from that year and store it in your towns. 29 Then the Levi, because he has no share or inheritance like yours, along with the foreigner, the orphan and the widow living in your towns, will come, eat and be satisfied — so that Adonai your God will bless you in everything your hands produce.
15:1 (vi) “At the end of every seven years you are to have a sh’mittah. 2 Here is how the sh’mittah is to be done: every creditor is to give up what he has loaned to his fellow member of the community — he is not to force his neighbor or relative to repay it, because Adonai’s time of remission has been proclaimed. 3 You may demand that a foreigner repay his debt, but you are to release your claim on whatever your brother owes you. 4 In spite of this, there will be no one needy among you; because Adonai will certainly bless you in the land which Adonai your God is giving you as an inheritance to possess — 5 if only you will listen carefully to what Adonai your God says and take care to obey all these mitzvot I am giving you today. 6 Yes, Adonai your God will bless you, as he promised you — you will lend money to many nations without having to borrow, and you will rule over many nations without their ruling over you.
7 “If someone among you is needy, one of your brothers, in any of your towns in your land which Adonai your God is giving you, you are not to harden your heart or shut your hand from giving to your needy brother. 8 No, you must open your hand to him and lend him enough to meet his need and enable him to obtain what he wants. 9 Guard yourself against allowing your heart to entertain the mean-spirited thought that because the seventh year, the year of sh’mittah is at hand, you would be stingy toward your needy brother and not give him anything; for then he may cry out to Adonai against you, and it will be your sin. 10 Rather, you must give to him; and you are not to be grudging when you give to him. If you do this, Adonai your God will bless you in all your work, in everything you undertake — 11 for there will always be poor people in the land. That is why I am giving you this order, ‘You must open your hand to your poor and needy brother in your land.’
12 “If your kinsman, a Hebrew man or woman, is sold to you, he is to serve you for six years; but in the seventh year, you are to set him free. 13 Moreover, when you set him free, don’t let him leave empty-handed; 14 but supply him generously from your flock, threshing-floor and winepress; from what Adonai your God has blessed you with, you are to give to him. 15 Remember that you were a slave in the land of Egypt, and Adonai your God redeemed you; that is why I am giving you this order today. 16 But if he says to you, ‘I don’t want to leave you,’ because he loves you and your household, and because his life with you is a good one; 17 then take an awl, and pierce his ear through, right into the door; and he will be your slave forever. Do the same with your female slave. 18 Don’t resent it when you set him free, since during his six years of service he has been worth twice as much as a hired employee. Then Adonai your God will bless you in everything you do.
(vii) 19 “All the firstborn males in your herd of cattle and in your flock you are to set aside for Adonai your God; you are not to do any work with a firstborn from your herd or shear a firstborn sheep. 20 Each year you and your household are to eat it in the presence of Adonai your God in the place which Adonai will choose. 21 But if it has a defect, is lame or blind, or has some other kind of fault, you are not to sacrifice it to Adonai your God; 22 rather, eat it on your own property; the unclean and the clean alike may eat it, like the gazelle or the deer. 23 Just don’t eat its blood, but pour it out on the ground like water.
16:1 “Observe the month of Aviv, and keep Pesach to Adonai your God; for in the month of Aviv, Adonai your God brought you out of Egypt at night. 2 You are to sacrifice the Pesach offering from flock and herd to Adonai your God in the place where Adonai will choose to have his name live. 3 You are not to eat any hametz with it; for seven days you are to eat with it matzah, the bread of affliction; for you came out of the land of Egypt in haste. Thus you will remember the day you left the land of Egypt as long as you live. 4 No leaven is to be seen with you anywhere in your territory for seven days. None of the meat from your sacrifice on the first day in the evening is to remain all night until morning. 5 You may not sacrifice the Pesach offering in just any of the towns that Adonai your God is giving you; 6 but at the place where Adonai your God will choose to have his name live — there is where you are to sacrifice the Pesach offering, in the evening, when the sun sets, at the time of year that you came out of Egypt. 7 You are to roast it and eat it in the place Adonai your God will choose; in the morning you will return and go to your tents. 8 For six days you are to eat matzah; on the seventh day there is to be a festive assembly for Adonai your God; do not do any kind of work.
9 “You are to count seven weeks; you are to begin counting seven weeks from the time you first put your sickle to the standing grain. 10 You are to observe the festival of Shavu‘ot [weeks] for Adonai your God with a voluntary offering, which you are to give in accordance with the degree to which Adonai your God has prospered you. 11 You are to rejoice in the presence of Adonai your God — you, your sons and daughters, your male and female slaves, the L’vi’im living in your towns, and the foreigners, orphans and widows living among you — in the place where Adonai your God will choose to have his name live. 12 Remember that you were a slave in Egypt; then you will keep and obey these laws.
(Maftir) 13 “You are to keep the festival of Sukkot for seven days after you have gathered the produce of your threshing-floor and winepress. 14 Rejoice at your festival — you, your sons and daughters, your male and female slaves, the L’vi’im, and the foreigners, orphans and widows living among you. 15 Seven days you are to keep the festival for Adonai your God in the place Adonai your God will choose, because Adonai your God will bless you in all your crops and in all your work, so you are to be full of joy!
16 “Three times a year all your men are to appear in the presence of Adonai your God in the place which he will choose — at the festival of matzah, at the festival of Shavu‘ot and at the festival of Sukkot. They are not to show up before Adonai empty-handed, 17 but every man is to give what he can, in accordance with the blessing Adonai your God has given you.)
Today's Laws and Customs
• Rosh Chodesh Observances
Today is the first of the two days of Rosh Chodesh (“Head of the Month”) for the month of Elul (when a month has 30 days, both the last day of the month and the first day of the following month serve as the following month’s Rosh Chodesh).
Special portions are added to the daily prayers: Hallel (Psalms 113-118) is recited—in its “partial” form—following the Shacharit morning prayer, and the Yaaleh Veyavo prayer is added to the Amidah and to Grace After Meals; the additional Musaf prayer is said (when Rosh Chodesh is Shabbat, special additions are made to the Shabbat Musaf). Tachanun (confession of sins) and similar prayers are omitted.
Many have the custom to mark Rosh Chodesh with a festive meal and reduced work activity. The latter custom is prevalent amongst women, who have a special affinity with Rosh Chodesh—the month being the feminine aspect of the Jewish calendar.
Links: The 29th Day; The Lunar Files
• L'David Hashem Ori
Beginning today, the psalm L'David Hashem Ori (Psalm 27) is recited at the end of the morning and afternoon prayers. This special addition is recited throughout the month of Elul and the High Holiday season, until Hoshanah Rabbah (Tishrei 21) -- a total of 50 days.
Links: Psalm 27, The High Holiday Anthem
Ethics: Chapter 5
• During the summer months, from the Shabbat after Passover until the Shabbat before Rosh Hashahah, we study a weekly chapter of the Talmud's Ethics of the Fathers ("Avot") each Shabbat afternoon; this week we study Chapter Five.
Link: Ethics of the Fathers, Chapter 5
Today in Jewish History:
• 2nd Tablets Hewn (1313 BCE)
On the last day of Av of the year 2448 from creation (1313 BCE), Moses carved, by G-d's command, two stone tablets -- each a cube measuring 6x6x6 tefachim (a tefach, "handbreadth", is approximately 3.2 inches) -- to replace the two divinely-made tablets, on which G-d had inscribed the Ten Commandments, which Moses had smashed 42 days earlier upon witnessing Israel's worship of the Golden Calf.
Links: The 120-Day Version of the Human Story
Daily Study:
Chitas and Rambam for today:
Chumash: Parshat Re'eh, 7th Portion (Deuteronomy 15:19-16:17) with Rashi
• Chapter 15
19Every firstborn male that is born of your cattle or of your flock you shall sanctify to the Lord, your God. You shall neither work with the firstborn of your ox, nor shear the firstborn of your flock. יטכָּל הַבְּכוֹר אֲשֶׁר יִוָּלֵד בִּבְקָרְךָ וּבְצֹאנְךָ הַזָּכָר תַּקְדִּישׁ לַיהֹוָה אֱלֹהֶיךָ לֹא תַעֲבֹד בִּבְכֹר שׁוֹרֶךָ וְלֹא תָגֹז בְּכוֹר צֹאנֶךָ:
Every firstborn male… you shall sanctify [to the Lord]: But elsewhere (Lev. 27:26) it says, “[But the firstborn which will be a firstborn for the Lord of the livestock,] no man shall sanctify it.” How is this [reconciled]? [The verse in Leviticus means that] one may not sanctify [the firstborn] to be another sacrifice [but only as a firstborn sacrifice]. And our verse here teaches us that it is a duty to proclaim [over the firstborn animal], “You are hereby sanctified as a firstborn.” Another explanation: It is impossible to say “sanctify [this firstborn animal],” because [Scripture] already says, “no man must shall sanctify it” (Lev. 27:26). And yet it is impossible to say that we shall not sanctify it, for [here] it already says, “you shall sanctify.” So how [can these two verses be reconciled]? [The answer is that we are dealing with an indirect sanctification, namely:] One may sanctify the value of the privilege [i.e., the owner of the firstborn animal has the privilege of choosing to which kohen he will give it. This privilege has a market value, namely how much an Israelite will pay so that the owner of the firstborn will give it to his grandson who is a kohen . The verse, therefore, means:] one may dedicate the value of this privilege according to its benefit and give it to the Temple [treasury]. — [Ar . 29a] כל הבכור וגו' תקדיש: ובמקום אחר הוא אומר לא יקדיש, שנאמר (ויקרא כז, כו) אך בכור אשר יבכר לה' וגו', הא כיצד, אינו מקדישו לקרבן אחר, וכאן למד שמצוה לומר הרי אתה קדוש לבכורה. דבר אחר אי אפשר לומר תקדיש שכבר נאמר לא יקדיש, ואי אפשר לומר לא יקדיש שהרי כבר נאמר תקדיש, הא כיצד, מקדישו אתה הקדש עלוי, ונותן להקדש כפי טובת הנאה שבו:
You shall neither work with the firstborn of your ox, nor shear [the firstborn of your flock]: The Rabbis derived that also the the converse [i.e., shearing your ox and working the flock] is prohibited. Scripture is merely speaking [here] of the usual manner [in which these animals are used]. — [Bech. 25a] לא תעבוד בבכור שורך ולא תגוז וגו': אף החלוף למדו רבותינו שאסור, אלא שדבר הכתוב בהווה:
20You shall eat it before the Lord, your God, year by year, in the place the Lord chooses-you and your household. כלִפְנֵי יְהֹוָה אֱלֹהֶיךָ תֹאכְלֶנּוּ שָׁנָה בְשָׁנָה בַּמָּקוֹם אֲשֶׁר יִבְחַר יְהֹוָה אַתָּה וּבֵיתֶךָ:
You shall eat it before the Lord, your God: [Scripture] is addressing the kohen , for we have already found [a statement to the effect] that it [the firstborn] is part of the dues given to kohanim , whether the animal is unblemished or whether it is blemished. For it is stated, “and their flesh [i.e., of the firstborn animals] shall be yours [i.e., the kohen 's]” (Num. 18:18). - [Bech. 28a] [In both cases, the kohen is entitled to eat the entire animal. The difference between the blemished and the unblemished animals is that the blemished animal is slaughtered outside the Temple, and its flesh may be eaten anywhere by anyone invited by the kohen . The unblemished animal, however, must be slaughtered in the Temple courtyard, its blood dashed on the altar, and its fat burned on the altar. The flesh must be eaten by the kohen and his household within the time allotted for eating it.] לפני ה' אלהיך תאכלנו: לכהן הוא אומר, שכבר מצינו שהוא ממתנות כהונה אחד תם ואחד בעל מום, שנאמר (במדבר יח, יח) ובשרם יהיה לך וגו':
[You shall eat it before the Lord…] year by year: From here we derive the law that one should not delay it [i.e., from sacrificing it] beyond its first year (Bech. 28a). [If so, however,] one might think that it becomes unfit [as a sacrifice] when the first year has elapsed. [Therefore, the Torah tells us that] it [the firstborn animal] has already been compared to ma’aser [sheini], as it is said,“And you shall eat before the Lord, your God… the tithes of your grain, your wine, and your oil, and the firstborn of your cattle and of your sheep” (Deut. 14:23). Just as ma’aser sheini does not become unfit [when it is left over] from one year to the next, neither does the firstborn animal become unfit. However, [this verse means] that the proper way to fulfill this commandment [of the firstborn animal] is during its first year. שנה בשנה: מכאן שאין משהין אותו יותר על שנתו. יכול יהא פסול משעברה שנתו, כבר הוקש למעשר, שנאמר (לעיל יד כג) ואכלת לפני ה' אלהיך מעשר דגנך תירושך ויצהרך ובכורות בקרך וצאנך, מה מעשר שני אינו נפסל משנה לחברתה, אף בכור אינו נפסל, אלא שמצוה תוך שנתו:
year by year: If one slaughtered it at the end of its first year [on the last day], he may eat it on that day and one day of the next year. This teaches [us] that it [a firstborn animal] may be eaten for two days and one [intervening] night. — [Bech. 27b] שנה בשנה: אם שחטו בסוף שנתו אוכלו אותו היום ויום אחד משנה אחרת. למד שנאכל לשני ימים ולילה אחד:
21And if there be any blemish in it, whether it be lame, or blind, or any ill blemish, you shall not sacrifice it to the Lord, your God. כאוְכִי יִהְיֶה בוֹ מוּם פִּסֵּחַ אוֹ עִוֵּר כֹּל מוּם רָע לֹא תִזְבָּחֶנּוּ לַיהֹוָה אֱלֹהֶיךָ:
[And if there be any] blemish [in it]: [This is] a כְּלָל, a general statement [not limiting itself to anything in particular]. מום: כלל:
lame, or blind: [This is] a פְּרָט, particular things, [limiting the matter to these things]. פסח או עור: פרט:
any ill blemish: [Once again the verse] reverts to כְּלָל, a general statement. [Now we have learned that when a verse expresses a כְּלָל, then a פְּרָט, and then a כְּלָל again, just as in this case, we apply the characteristics of the פְּרָט to the whole matter.] Just as the blemishes detailed [lame or blind] are externally visible blemishes that do not heal, so too, any externally visible blemish that does not heal [renders a firstborn animal unfit for sacrifice and may be eaten as ordinary flesh]. — [Bech. 37a] כל מום רע: חזר וכלל. מה הפרט מפורש מום הגלוי ואינו חוזר, אף כל מום שבגלוי ואינו חוזר:
22You shall eat it within your cities, the unclean and the clean together, as the deer, and as the gazelle. כבבִּשְׁעָרֶיךָ תֹּאכְלֶנּוּ הַטָּמֵא וְהַטָּהוֹר יַחְדָּו כַּצְּבִי וְכָאַיָּל:
23However, you shall not eat its blood; you shall pour it on the ground, as water. כגרַק אֶת דָּמוֹ לֹא תֹאכֵל עַל הָאָרֶץ תִּשְׁפְּכֶנּוּ כַּמָּיִם:
However, you shall not eat its blood: [Although eating the blood of any animal is prohibited, this prohibition is mentioned here] so that you should not say: “Since this [blemished firstborn animal] is entirely permitted [to be eaten now after its blemish, even though] it started out from a forbidden status, since it was sanctified, [and now it is permitted] for it is slaughtered outside [the Temple] without having to be redeemed, and [it may be] eaten. I might [therefore] think that its blood is permitted as well!” Therefore, Scripture states,“However, you shall not eat its blood.” רק את דמו לא תאכל: שלא תאמר הואיל וכולו היתר הבא מכלל איסור הוא, שהרי קדוש ונשחט בחוץ בלא פדיון ונאכל, יכול יהא אף הדם מותר, תלמוד לומר רק את דמו לא תאכל:
Chapter 16
1Keep the month of spring, and make the Passover offering to the Lord, your God, for in the month of spring, the Lord, your God, brought you out of Egypt at night. אשָׁמוֹר אֶת חֹדֶשׁ הָאָבִיב וְעָשִׂיתָ פֶּסַח לַיהֹוָה אֱלֹהֶיךָ כִּי בְּחֹדֶשׁ הָאָבִיב הוֹצִיאֲךָ יְהֹוָה אֱלֹהֶיךָ מִמִּצְרַיִם לָיְלָה:
Keep the month of spring: Heb. אָבִיב. Before it [Nissan] arrives, watch that it should be fit for the אָבִיב, ripening [capable of producing ripe ears of barley by the sixteenth of the month], to offer up in it the omer meal offering. And if not, proclaim it a leap year [thereby enabling you to wait another month, until the barley ripens]. — [San. 11b] שמור את חדש האביב: מקודם בואו שמור, שיהא ראוי לאביב להקריב בו את מנחת העומר, ואם לאו, עבר את השנה:
[for in the month of spring the Lord, your God, brought you] out of Egypt at night: But did they not go out by day, as it is said, “on the morrow of the Passover the children of Israel went out…” (Num. 33:3)? However, since during the night Pharaoh gave them permission to leave, as it is said, “So he called for Moses and Aaron at night [and said, ‘Rise up, go out from among my people…]’ ” (Exod. 12:31), [therefore, here it says “at night”]. — [Ber. 9a] ממצרים לילה: והלא ביום יצאו, שנאמר (במדבר לג, ג) ממחרת הפסח יצאו בני ישראל וגו', אלא לפי שבלילה נתן להם פרעה רשות לצאת, שנאמר (שמות יב, לא) ויקרא למשה ולאהרן לילה וגו':
2You shall slaughter the Passover sacrifice to the Lord, your God, [of the] flock, and [the Festival sacrifices of the] cattle, in the place which the Lord will choose to establish His Name therein. בוְזָבַחְתָּ פֶּסַח לַיהֹוָה אֱלֹהֶיךָ צֹאן וּבָקָר בַּמָּקוֹם אֲשֶׁר יִבְחַר יְהֹוָה לְשַׁכֵּן שְׁמוֹ שָׁם:
You shall slaughter the Passover sacrifice to the Lord, your God, [of the] flock: As it is said, “You may take [it] either from the sheep or from the goats” (Exod. 12:5). וזבחת פסח לה' אלהיך צאן: שנאמר (שמות יב ה) מן הכבשים ומן העזים תקחו:
and…cattle: These are slaughtered as the chagigah [Festival offering]. If a large group was formed for the Passover offering, they bring a Festival offering along with it, so that the Passover sacrifice will be eaten [after a sufficient meal, and therefore] after the required satiation. [Everyone had to designate himself to a particular company of people, which was then relevant to one particular Passover offering (Pes. 69a-70b).] Our Rabbis also derived many other things from this verse. — [Sifrei ; Pes. 70a] ובקר: תזבח לחגיגה. שאם נמנו על הפסח חבורה מרובה מביאים עמו חגיגה כדי שיהא נאכל על השובע, ועוד למדו רבותינו דברים הרבה מפסוק זה:
3You shall not eat leaven with it; for seven days you shall eat with it matzoth, the bread of affliction, for in haste you went out of the land of Egypt, so that you shall remember the day when you went out of the land of Egypt all the days of your life. גלֹא תֹאכַל עָלָיו חָמֵץ שִׁבְעַת יָמִים תֹּאכַל עָלָיו מַצּוֹת לֶחֶם עֹנִי כִּי בְחִפָּזוֹן יָצָאתָ מֵאֶרֶץ מִצְרַיִם לְמַעַן תִּזְכֹּר אֶת יוֹם צֵאתְךָ מֵאֶרֶץ מִצְרַיִם כֹּל יְמֵי חַיֶּיךָ:
the bread of affliction: [I.e.,] bread that brings to mind the affliction they suffered in Egypt. — [Sifrei] לחם עני: לחם שמזכיר את העוני שנתענו במצרים:
for in haste you went out of the land of Egypt: And the dough [that you had prepared for eating] did not have time to become leavened, so this [matzah] will be for you as a reminder. And the haste [here] is not on your part, but on the part of the Egyptians, for so it says, “So the Egyptians took hold of the people [to hasten to send them out of the land]” (Exod. 12:33). - [Sifrei; Ber. 9a] כי בחפזון יצאת: ולא הספיק בצק להחמיץ וזה יהיה לך לזכרון. וחפזון לא שלך היה אלא של מצרים, שכן הוא אומר (שמות יב, לג) ותחזק מצרים על העם וגו':
so that you shall remember: By eating the Passover sacrifice and the matzah, the day you went out [of the land of Egypt]. למען תזכור: על ידי אכילת הפסח והמצה, את יום צאתך:
4And no leaven shall be seen with you within all your border for seven days; neither shall any of the flesh you slaughter on the preceding day in the afternoon, remain all night until the morning. דוְלֹא יֵרָאֶה לְךָ שְׂאֹר בְּכָל גְּבֻלְךָ שִׁבְעַת יָמִים וְלֹא יָלִין מִן הַבָּשָׂר אֲשֶׁר תִּזְבַּח בָּעֶרֶב בַּיּוֹם הָרִאשׁוֹן לַבֹּקֶר:
neither shall any of the flesh you slaughter on the preceding day in the afternoon, remain all night until the morning: This is an admonition regarding leaving over the flesh of the Passover sacrifice, offered up by future generations, because [so far this prohibition] had been mentioned only with regard to the Passover sacrifice offered in Egypt (see Exod. 12:10). And יוֹם רִאשׁוֹן stated here is the fourteenth of Nissan [the preceding day, and not the fifteenth, which is the first day of Passover], just as it says:“but on the preceding day (בַּיוֹם הָרִאשׁוֹן) you shall clear away leaven from your houses” (Exod. 12:15). Now since Scripture digressed from the subject of the Passover sacrifice and began to speak of the rules pertaining to the seven days [of the Festival]-such as, “seven days you shall eat with it matzoth ” (verse 3); “And no leaven shall be seen with you within all your border for seven days” (verse 4)-it was necessary to specify to which slaughtering [Scripture] is admonishing. For had it written only “neither shall any of the flesh you slaughter in the afternoon, remain all night until the morning” [without saying “the preceding day”], I might have thought that the peace offerings slaughtered during all the seven days are also subject to [the prohibition of] “And you shall not leave any of it until the morning,” (Exod. 12:10), and may be eaten only for [one] day and a night. Therefore, it is written:“on the preceding day in the evening,” [thereby clarifying that the verse is referring to the Passover sacrifice]. Another explanation: Scripture is referring to the Festival offering brought on the fourteenth of Nissan [and not to the specific Passover sacrifice], and it teaches with reference to it that it may be eaten for two days [and the intervening night]. Now the רִאשׁוֹן mentioned here [according to this explanation], is the first day of the Festival [i.e., the fifteenth of Nissan, rather than the preceding day]. And this is the meaning of the verse: The flesh of the Festival offering, which you slaughtered in the afternoon, shall not remain overnight after the first day of the Festival until the morning of the second day [the sixteenth of Nissan], but rather, it is to be eaten on the fourteenth and the fifteenth [and the intervening night]. And thus it is taught in tractate Pes. (71b). ולא ילין מן הבשר אשר תזבח בערב ביום הראשון לבקר: אזהרה למותיר בפסח דורות, לפי שלא נאמר אלא בפסח מצרים, ויום ראשון האמור כאן הוא י"ד בניסן, כמה דאת אמר (שמות יב, טו) אך ביום הראשון תשביתו שאור מבתיכם. ולפי שנסתלק הכתוב מענינו של פסח והתחיל לדבר בחקות שבעת ימים, כגון שבעת ימים תאכל עליו מצות ולא יראה לך שאור בכל גבולך, הוצרך לפרש באיזו זביחה הוא מזהיר, שאם כתב ולא ילין מן הבשר אשר תזבח בערב לבקר הייתי אומר שלמים הנשחטים כל שבעה כולן בבל תותירו ואינן נאכלין אלא ליום ולילה, לכך כתב בערב ביום הראשון. דבר אחר בחגיגת י"ד הכתוב מדבר, ולמד עליה שנאכלת לשני ימים. והראשון האמור כאן, ביום טוב הראשון הכתוב מדבר. וכן משמעות המקרא, בשר חגיגה אשר תזבח בערב, לא ילין ביום טוב הראשון עד בקרו של שני, אבל נאכלת היא בארבעה עשר ובחמשה עשר, כך היא שנויה במסכת פסחים (עא ב):
5You shall not sacrifice the Passover offering within any of your cities, which the Lord, your God, is giving you. הלֹא תוּכַל לִזְבֹּחַ אֶת הַפָּסַח בְּאַחַד שְׁעָרֶיךָ אֲשֶׁר יְהֹוָה אֱלֹהֶיךָ נֹתֵן לָךְ:
6Except at the place which the Lord, your God, will choose to establish His Name-there you shall slaughter the Passover offering in the afternoon, as the sun sets, at the appointed time that you went out of Egypt. וכִּי אִם אֶל הַמָּקוֹם אֲשֶׁר יִבְחַר יְהֹוָה אֱלֹהֶיךָ לְשַׁכֵּן שְׁמוֹ שָׁם תִּזְבַּח אֶת הַפֶּסַח בָּעָרֶב כְּבוֹא הַשֶּׁמֶשׁ מוֹעֵד צֵאתְךָ מִמִּצְרָיִם:
in the afternoon, as the sun sets, at the appointed time that you went out of Egypt: These are three separate times. Towards evening---after six hours slaughter it. At sunset eat it. At the time you left you burn it, meaning that it is disqualified as notar, and must be removed to the burning site. בערב כבוא השמש מועד צאתך ממצרים: הרי שלשה זמנים חלוקים; בערב משש שעות ולמעלה זבחהו, וכבוא השמש תאכלהו, ומועד צאתך, אתה שורפהו. כלומר, נעשה נותר ויצא לבית השרפה:
7And you shall roast [it] and eat [it] in the place which the Lord, your God, will choose, and you shall turn away in the morning and go to your dwellings. זוּבִשַּׁלְתָּ וְאָכַלְתָּ בַּמָּקוֹם אֲשֶׁר יִבְחַר יְהֹוָה אֱלֹהֶיךָ בּוֹ וּפָנִיתָ בַבֹּקֶר וְהָלַכְתָּ לְאֹהָלֶיךָ:
And you shall roast [it]: Heb. וּבִשַּׁלְתָּ. [Here] this term means“roasted in fire” (צְלִי אֵשׁ) (see Exod. 12:9), for roasting is also included in the general term of בִּשּׁוּל, “cooking.” ובשלת: זהו צלי אש, שאף הוא קרוי בשול:
and you shall turn away in the morning [and go to your dwellings]:[i.e.,] the morning of the second day [of Passover]. This teaches that [the pilgrim] is required to remain [in Jerusalem] the night when the Festival terminates. — [Sifrei ; Pes. 95b; Chag. 17a-b] ופנית בבקר: לבקרו של שני, מלמד שטעון לינה ליל של מוצאי יום טוב:
8For six days you shall eat matzoth, and on the seventh day there shall be a halt to the Lord, your God. You shall not do any work [on it]. חשֵׁשֶׁת יָמִים תֹּאכַל מַצּוֹת וּבַיּוֹם הַשְּׁבִיעִי עֲצֶרֶת לַיהֹוָה אֱלֹהֶיךָ לֹא תַעֲשֶׂה מְלָאכָה:
For six days you shall eat matzoth: But elsewhere it says, “For seven days [you shall eat matzoth]!” (Exod. 12:15). [The solution is:] For seven days you shall eat matzoth from the old [produce] and six days [i.e., the last six days, after the omer has been offered] you may eat matzoth prepared from the new [crop]. Another explanation: It teaches that the eating of matzoh on the seventh day of Passover is not obligatory, and from here you learn [that the same law applies] to the other six days [of the Festival], For the seventh day was included in a general statement [in the verse “For seven days you shall eat matzoth ,” but in the verse: “Six days you shall eat matzoth ”] it has been taken out of this general [statement], to teach us that eating matzoh [on the seventh day] is not obligatory, but optional. [Now we have aready learned that if something is singled out of a general statement, we apply the relevant principle not only to itself but to every thing included in the general category. Thus the seventh day] is excluded here not to teach regarding itself, rather to teach regarding the entire generalization [i.e., the entire seven days of the Festival]. Just as on the seventh day the eating of matzah is optional, so too, on all the other days, the eating of matzah is optional. The only exception is the first night [of Passover], which Scripture has explicitly established as obligatory, as it is said, “in the evening, you shall eat matzoth” (Exod. 12:18). - [Mechilta on Exod 12:18; Pes. 120a] ששת ימים תאכל מצות: ובמקום אחר הוא אומר (שמות יב, טו) שבעת ימים, שבעה מן הישן וששה מן החדש. דבר אחר למד על אכילת מצה בשביעי, שאינה חובה, ומכאן אתה למד לששת ימים. שהרי שביעי בכלל היה ויצא מן הכלל ללמד, שאין אכילת מצה בו חובה אלא רשות, ולא ללמד על עצמו יצא אלא ללמד על הכלל כולו יצא, מה שביעי רשות אף כולם רשות, חוץ מלילה הראשון שהכתוב קבעו חובה, שנאמר (שמות יב, יח) בערב תאכלו מצות:
[and on the seventh day there shall be] a halt to the Lord your God:עִצֶרֶת. Keep yourself back from work. Another explanation: [עִצֶרֶת means] a gathering for eating and drinking, as the expression,“Let us detain (נַעַצְרָה) you” (Judg. 13:15). עצרת לה' אלהיך: עצור עצמך מן המלאכה. דבר אחר כנופיא של מאכל ומשתה, לשון (שופטים יג, טו) נעצרה נא אותך:
9You shall count seven weeks for yourself; from[the time] the sickle is first put to the standing crop, you shall begin to count seven weeks. טשִׁבְעָה שָׁבֻעֹת תִּסְפָּר לָךְ מֵהָחֵל חֶרְמֵשׁ בַּקָּמָה תָּחֵל לִסְפֹּר שִׁבְעָה שָׁבֻעוֹת:
from [the time] the sickle is first put to the standing crop, [you shall begin to count seven weeks]: [I.e.,] from the time the omer is harvested [on the sixteenth of Nissan], which is the beginning of the harvest. — [see Lev . 23:10, Sifrei ; Men. 71a] מהחל חרמש בקמה: משנקצר העומר שהוא ראשית הקציר:
10And you shall perform the Festival of Weeks to the Lord, your God, the donation you can afford to give, according to how the Lord, your God, shall bless you. יוְעָשִׂיתָ חַג שָׁבֻעוֹת לַיהֹוָה אֱלֹהֶיךָ מִסַּת נִדְבַת יָדְךָ אֲשֶׁר תִּתֵּן כַּאֲשֶׁר יְבָרֶכְךָ יְהֹוָה אֱלֹהֶיךָ:
the donation you can afford to give: [I.e.,] sufficient generous donation from you; according to the blessing [that God bestows upon you], bring peace offerings of happiness [these are extra peace offerings in addition to the Festival offerings] and invite guests to eat [with you]. מסת נדבת ידך: די נדבת ידך, הכל לפי הברכה, הבא שלמי שמחה, וקדש קרואים לאכול:
11And you shall rejoice before the Lord, your God, -you, and your son, and your daughter, and your manservant, and your maidservant, and the Levite who is within your cities, and the stranger, and the orphan, and the widow, who are among you, in the place which the Lord, your God, will choose to establish His Name therein. יאוְשָׂמַחְתָּ לִפְנֵי | יְהֹוָה אֱלֹהֶיךָ אַתָּה וּבִנְךָ וּבִתֶּךָ וְעַבְדְּךָ וַאֲמָתֶךָ וְהַלֵּוִי אֲשֶׁר בִּשְׁעָרֶיךָ וְהַגֵּר וְהַיָּתוֹם וְהָאַלְמָנָה אֲשֶׁר בְּקִרְבֶּךָ בַּמָּקוֹם אֲשֶׁר יִבְחַר יְהֹוָה אֱלֹהֶיךָ לְשַׁכֵּן שְׁמוֹ שָׁם:
the Levite… the stranger, the orphan, and the widow: [God says:] These are My four, corresponding to your four, [namely,] “Your son, and your daughter, and your manservant, and your maidservant.” If you shall gladden Mine, I will gladden yours. — [Midrash Aggadah , Midrash Hagadol . Compare Tanchuma 18, Pesikta d’Rav Kahana p.100a. Note that in incunabula editions, this comment of Rashi is connected to the preceding one: and invite guests to eat [with you]: the Levite… the stranger, the orphan, and the widow. [God says:] These are My four…] והלוי והגר והיתום והאלמנה: ארבעה שלי כנגד ארבעה שלך, בנך ובתך ועבדך ואמתך, אם אתה משמח את שלי, אני משמח את שלך:
12And you shall remember that you were a slave in Egypt, and you shall keep and perform these statutes. יבוְזָכַרְתָּ כִּי עֶבֶד הָיִיתָ בְּמִצְרָיִם וְשָׁמַרְתָּ וְעָשִׂיתָ אֶת הַחֻקִּים הָאֵלֶּה:
And you shall remember that you were a slave [in Egypt]: On this condition did I redeem you [from Egypt], that you keep and perform these statutes. וזכרת כי עבד היית וגו': על מנת כן פדיתיך, שתשמור ותעשה את החוקים האלה:
13You shall make yourself the Festival of Sukkoth for seven days, when you gather in [the produce] from your threshing floor and your vat. יגחַג הַסֻּכֹּת תַּעֲשֶׂה לְךָ שִׁבְעַת יָמִים בְּאָסְפְּךָ מִגָּרְנְךָ וּמִיִּקְבֶךָ:
You shall make yourself the Festival of Sukkoth…] when you gather in [the produce]-: [i.e.,] at the time of the ingathering, when you bring the summer fruits into the house. Another explanation:“when you gather in [the produce] from your threshing floor and your vat” (בְּאָסְפְּךָ מִגָּרְנְךָ וּמִיִּקְבֶךָ) teaches that we should cover the sukkah [only] with the waste products that come from the threshing floor and the vat [i.e., with things that have grown from the ground, have become detached, and are not susceptible to ritual uncleanness. Since they are not foods and are not vessels, they are not susceptible to spiritual uncleanness. - R.H. 13a; Suk. 12a] באספך: בזמן האסיף שאתה מכניס לבית פירות הקיץ. דבר אחר באספך מגרנך ומיקבך, למד שמסככין את הסוכה בפסולת גורן ויקב:
14And you shall rejoice in your Festival-you, and your son, and your daughter, and your manservant, and your maidservant, and the Levite, and the stranger, and the orphan, and the widow, who are within your cities. ידוְשָׂמַחְתָּ בְּחַגֶּךָ אַתָּה וּבִנְךָ וּבִתֶּךָ וְעַבְדְּךָ וַאֲמָתֶךָ וְהַלֵּוִי וְהַגֵּר וְהַיָּתוֹם וְהָאַלְמָנָה אֲשֶׁר בִּשְׁעָרֶיךָ:
15Seven days you shall celebrate the Festival to the Lord, your God, in the place which the Lord shall choose, because the Lord, your God, will bless you in all your produce, and in all the work of your hands, and you will only be happy. טושִׁבְעַת יָמִים תָּחֹג לַיהֹוָה אֱלֹהֶיךָ בַּמָּקוֹם אֲשֶׁר יִבְחַר יְהֹוָה כִּי יְבָרֶכְךָ יְהֹוָה אֱלֹהֶיךָ בְּכֹל תְּבוּאָתְךָ וּבְכֹל מַעֲשֵׂה יָדֶיךָ וְהָיִיתָ אַךְ שָׂמֵחַ:
and you will only be happy: According to its simple meaning, this is not an expression denoting a command, but rather an expression of an assurance [i.e., I promise you that you will be happy]. But according to its oral interpretation, [our Rabbis] learned from this to include the night before the last day of the Festival for the obligation of rejoicing. — [see Suk. 48a; Sifrei] והיית אך שמח: לפי פשוטו אין זה לשון צווי אלא לשון הבטחה, ולפי תלמודו למדו מכאן לרבות לילי יום טוב האחרון לשמחה:
16Three times in the year, every one of your males shall appear before the Lord, your God, in the place He will choose: on the Festival of Matzoth and on the Festival of Weeks, and on the Festival of Sukkoth, and he shall not appear before the Lord empty-handed. טזשָׁלוֹשׁ פְּעָמִים | בַּשָּׁנָה יֵרָאֶה כָל זְכוּרְךָ אֶת פְּנֵי | יְהֹוָה אֱלֹהֶיךָ בַּמָּקוֹם אֲשֶׁר יִבְחָר בְּחַג הַמַּצּוֹת וּבְחַג הַשָּׁבֻעוֹת וּבְחַג הַסֻּכּוֹת וְלֹא יֵרָאֶה אֶת פְּנֵי יְהֹוָה רֵיקָם:
and he shall not appear before the Lord empty-handed: But bring burnt-offerings of appearance (עוֹלוֹת רְאִיָּה) [which are obligatory when appearing before the Lord in Jerusalem on the Festivals] and Festival peace-offerings. - [Chag. 8b] ולא יראה את פני ה' ריקם: אלא הבא עולות ראייה ושלמי חגיגה:
17[Every] man [shall bring] as much as he can afford, according to the blessing of the Lord, your God, which He has given you. יזאִישׁ כְּמַתְּנַת יָדוֹ כְּבִרְכַּת יְהֹוָה אֱלֹהֶיךָ אֲשֶׁר נָתַן לָךְ:
[Every] man [shall bring] as much as he can afford: One who has many eaters [i.e., a large family] and many possessions should bring many burnt-offerings and many peace-offerings. — [Sifrei; Chag. 8b] איש כמתנת ידו: מי שיש לו אוכלין הרבה ונכסים מרובין יביא עולות מרובות ושלמים מרובים:
Daily Tehillim: Psalms Chapters 145-150
• Chapter 145
One who recites this psalm three times daily with absolute concentration is guaranteed a portion in the World to Come. Because of its prominence, this psalm was composed in alphabetical sequence.
1. A psalm of praise by David: I will exalt You, my God the King, and bless Your Name forever.
2. Every day I will bless You, and extol Your Name forever.
3. The Lord is great and exceedingly exalted; there is no limit to His greatness.
4. One generation to another will laud Your works, and tell of Your mighty acts.
5. I will speak of the splendor of Your glorious majesty and of Your wondrous deeds.
6. They will proclaim the might of Your awesome acts, and I will recount Your greatness.
7. They will express the remembrance of Your abounding goodness, and sing of Your righteousness.
8. The Lord is gracious and compassionate, slow to anger and of great kindness.
9. The Lord is good to all, and His mercies extend over all His works.
10. Lord, all Your works will give thanks to You, and Your pious ones will bless You.
11. They will declare the glory of Your kingdom, and tell of Your strength,
12. to make known to men His mighty acts, and the glorious majesty of His kingdom.
13. Your kingship is a kingship over all worlds, and Your dominion is throughout all generations.
14. The Lord supports all who fall, and straightens all who are bent.
15. The eyes of all look expectantly to You, and You give them their food at the proper time.
16. You open Your hand and satisfy the desire of every living thing.
17. The Lord is righteous in all His ways, and benevolent in all His deeds.
18. The Lord is close to all who call upon Him, to all who call upon Him in truth.
19. He fulfills the desire of those who fear Him, hears their cry and delivers them.
20. The Lord watches over all who love Him, and will destroy all the wicked.
21. My mouth will utter the praise of the Lord, and let all flesh bless His holy Name forever.
Chapter 146
This psalm inspires man to repent and perform good deeds while still alive. Let him not rely on mortals who are unable to help themselves, and who may suddenly pass on. Rather, one should put his trust in God, Who is capable of carrying out all He desires.
1. Praise the Lord! Praise the Lord, O my soul.
2. I will sing to the Lord with my soul; I will chant praises to my God while I yet exist.
3. Do not place your trust in nobles, nor in mortal man who has not the ability to bring deliverance.
4. When his spirit departs, he returns to his earth; on that very day, his plans come to naught.
5. Fortunate is he whose help is the God of Jacob, whose hope rests upon the Lord his God.
6. He makes the heavens, the earth, the sea, and all that is in them; He keeps His promise faithfully forever.
7. He renders justice to the oppressed; He gives food to the hungry; the Lord releases those who are bound.
8. The Lord opens the eyes of the blind; the Lord straightens those who are bowed; the Lord loves the righteous.
9. The Lord watches over the strangers; He gives strength to orphan and widow; He thwarts the way of the wicked.
10. The Lord shall reign forever, your God, O Zion, throughout all generations. Praise the Lord!
Chapter 147
This psalm recounts God's greatness, and His kindness and goodness to His creations.
1. Praise the Lord! Sing to our God for He is good; praise befits Him for He is pleasant.
2. The Lord is the rebuilder of Jerusalem; He will gather the banished of Israel.
3. He heals the broken-hearted, and bandages their wounds.
4. He counts the number of the stars; He gives a name to each of them.
5. Great is our Master and abounding in might; His understanding is beyond reckoning.
6. The Lord strengthens the humble; He casts the wicked to the ground.
7. Lift your voices to the Lord in gratitude; sing to our God with the harp.
8. He covers the heaven with clouds; He prepares rain for the earth, and makes grass grow upon the mountains.
9. He gives the animal its food, to the young ravens which cry to Him.
10. He does not desire [those who place their trust in] the strength of the horse, nor does He want those who rely upon the thighs [swiftness] of man.
11. He desires those who fear Him, those who long for His kindness.
12. Praise the Lord, O Jerusalem; Zion, extol your God.
13. For He has strengthened the bolts of your gates; He has blessed your children in your midst.
14. He has made peace within your borders; He satiates you with the finest of wheat.
15. He issues His command to the earth; swiftly does His word run.
16. He dispenses snow like fleece; He scatters frost like ashes.
17. He hurls His ice like morsels; who can withstand His cold?
18. He sends forth His word and melts them; He causes His wind to blow, and the waters flow.
19. He tells His words [Torah] to Jacob, His statutes and ordinances to Israel.
20. He has not done so for other nations, and they do not know [His] ordinances. Praise the Lord!
Chapter 148
The psalmist inspires one to praise God for His creations-above and below-all of which exist by God's might alone.
1. Praise the Lord! Praise the Lord from the heavens; praise Him in the celestial heights.
2. Praise Him, all His angels; praise Him, all His hosts.
3. Praise Him, sun and moon; praise Him, all the shining stars.
4. Praise Him, hea-ven of heavens, and the waters that are above the heavens.
5. Let them praise the Name of the Lord, for He comman-ded and they were created.
6. He has established them forever, for all time; He issued a decree, and it shall not be transgressed.
7. Praise the Lord from the earth, sea-monsters and all [that dwell in] the depths;
8. fire and hail, snow and vapor, stormy wind carrying out His command;
9. the mountains and all hills, fruit-bearing trees and all cedars;
10. the beasts and all cattle, creeping things and winged fowl;
11. kings of the earth and all nations, rulers and all judges of the land;
12. young men as well as maidens, elders with young lads.
13. Let them praise the Name of the Lord, for His Name is sublime, to Himself; its radiance [alone] is upon earth and heaven.
14. He shall raise the glory of His people, [increase] the praise of all His pious ones, the Children of Israel, the people close to Him. Praise the Lord!
Chapter 149
1. Praise the Lord! Sing to the Lord a new song, [recount] His praise in the assembly of the pious.
2. Israel will rejoice in its Maker; the children of Zion will delight in their King.
3. They will praise His Name with dancing; they will sing to Him with the drum and harp.
4. For the Lord desires His people; He will adorn the humble with salvation.
5. The pious will exult in glory; they will sing upon their beds.
6. The exaltation of God is in their throat, and a double-edged sword in their hand,
7. to bring retribution upon the nations, punishment upon the peoples;
8. to bind their kings with chains, and their nobles with iron fetters;
9. to execute upon them the prescribed judgment; it shall be a glory for all His pious ones. Praise the Lord!
Chapter 150
This psalm contains thirteen praises, alluding to the Thirteen Attributes (of Mercy) with which God conducts the world.
1. Praise the Lord! Praise God in His holiness; praise Him in the firmament of His strength.
2. Praise Him for His mighty acts; praise Him according to His abundant greatness.
3. Praise Him with the call of the shofar; praise Him with harp and lyre.
4. Praise Him with timbrel and dance; praise Him with stringed instruments and flute.
5. Praise Him with resounding cymbals; praise Him with clanging cymbals.
6. Let every soul praise the Lord. Praise the Lord!
Daily Tanya: Iggeret HaKodesh, end of Epistle 9
• Lessons in Tanya
• Shabbat, Menachem Av 30, 5775 · August 15, 2015
Today's Tanya Lesson
Iggeret HaKodesh, end of Epistle 9
על כן אהוביי אחיי
Therefore, my beloved ones, my brethren:
שימו נא לבבכם לאלה הדברים הנאמרים בקצרה מאד
Direct your hearts to these words which are expressed very briefly,
ואם ירצה ה׳, פנים אל פנים אדבר בם בארוכה
(1and face to face, please G‑d, I will speak of them at length) —
איך היות כל עיקר עבודת ה׳ בעתים הללו, בעקבות משיחא, היא עבודת הצדקה
how in these times, when the approaching footsteps of Mashiach are close upon us, the principal service of G‑d is the service of charity.
כמו שאמרו רז״ל: אין ישראל נגאלין אלא בצדקה
As our Sages, of blessed memory, said:2 “Israel will be redeemed only through charity.”
ולא אמרו רז״ל: תלמוד תורה שקול כנגד גמילות חסדים
Our Sages, of blessed memory, did not say that the study of Torah is equivalent to the performance of acts of lovingkindness,
The Mishnah states in Peah:3 “The study of Torah is equivalent to them all,” i.e., to all the mitzvot previously enumerated in the Mishnah, and these includegemilut chassadim, the performance of acts of lovingkindness,
אלא בימיהם
except in their own days.
שתלמוד תורה היה עיקר העבודה אצלם, ועל כן היו חכמים גדולים, תנאים ואמוראים
For with them the principal area of divine service was the study of the Torah, which is why at that time there were great scholars: tannaim and amoraim.
מה שאין כן בעקבות משיחא
However, in a time when the approaching footsteps of Mashiach are close upon us,
שנפלה סוכת דוד עד בחינת רגלים ועקביים, שהיא בחינת עשיה
as “the Sukkah of David has fallen” to a level of “feet” and “heels”, i.e., to the level of Asiyah,
I.e., the Sefirah called Malchut of Atzilut, the Shechinah that vests itself in the lower Worlds of Beriah, Yetzirah and Asiyah — also known as the “Sukkahof David,” for David, as the King of Israel, was a merkavah to Malchut of Atzilut— has fallen to the lowest level of Asiyah.
אין דרך לדבקה בה באמת
there is no way of truly cleaving unto it, i.e., to the Shechinah,
ולהפכא חשוכא לנהורא דילה
and transforming the darkness of the world into its light,4
כי אם בבחינת עשיה גם כן
except through a corresponding category of action, and not through intellect and speech alone, as in Torah study,
שהיא מעשה הצדקה
namely, the act of charity.
But why is charity unique among all the many commandments that involve action?
כידוע למשכילים, שבחינת עשיה באלקות היא בחינת השפעת והמשכת החיות למטה מטה, למאן דלית ליה מגרמיה כלום
As is known to the scholarly, “action” with reference to Divinity is the diffusion and downward flow of vitality to the lowest depths — to him who has nothing of his own.
Among the currents of Divine influence that descend into the various worlds, there are those that are called “thought” and “speech”. The flow of vitality to the very lowest level — to the World of Asiyah, where G‑dliness is not at all manifest — is called “action”.
The act of giving tzedakah thus truly corresponds to the spiritual level ofAsiyah, inasmuch as it too provides beneficence to one “who has nothing of his own.”
וכל הזובח את יצרו בזה
And whoever sacrifices his impulse in this respect, i.e., with respect to charity,
ופותח ידו ולבבו
and opens his hand and heart,
אתכפיא סטרא אחרא
[thereby] causes5 “the other [i.e., evil] side” of the universe to be subjugated,
ומהפך חשוכא לאור ה׳ יתברך, השוכן עלינו בבחינת עשיה בעקבות משיחא
and6 “converts the darkness into the light” of G‑d, blessed be He, Who, in the time when the footsteps of Mashiach are close upon us, dwells over us in a state of action;
ויזכה לראות עין בעין, בשוב ה׳ ציון כו׳
moreover, he will merit to7 “behold Eye to eye, G‑d returning to Zion....”
At that time the physical eye, though yet retaining its physicality, will behold G‑dliness as it is beheld by the Supernal Eye. Thus, within the physicality of the World of Asiyah, there will be revealed the level of certainty in spiritual perception which is called vision — a level that far surpasses the furthest attainments of the intellect.
| FOOTNOTES | |
| 1. | Parentheses are in the original text. |
| 2. |
Note of the Rebbe: “See Rambam, Hilchot Matnot Aniyim, beginning of ch. 10; quoted in Tur, Yoreh Deah, beginning of sec. 247. The above quotation does not refer to the similar teaching in theTalmud (Shabbat 139a; Sanhedrin 98a), for there the verb is נפדה [whereas our text reads נגאלין]. Very often, as is well known, the commentators {(the Radbaz and the Kesef Mishneh and the Glosses on the Tur) who give the teaching of Ulla in the Talmud (loc. cit.) as Rambam’s source} do not intend to quote the exact wording of a particular teaching, but rather to cite its content. See also the halachah that immediately follows this statement in the Rambam, and the above-named commentaries on it.“
As to Mesoret HaShas and the other authorities who argue that the Rambam had before him the text ‘Israel’ (in place of ‘Jerusalem’) in the Talmud, they speak only of the one word ‘Israel’, and such a variant reading is to be found elsewhere — in Ein Yaakov. A version that would includenigalin, however, I have yet to find in the Talmud or in Yalkut Shimoni.
Moreover, it is more improbable to postulate that the Rambam had a variant reading that is not at all extant, than to assume that the Rambam is more explicit than the Talmud, for which reason he very understandably writes nigalin.”
|
| 3. | 1:1. |
| 4. | V.L.: לנהורא דיליה (“to his light”). |
| 5. | Cf. Likkutei Amarim, Part I, ch. 27. |
| 6. | Cf. Likkutei Amarim, Part I, ch. 27. |
| 7. | Yeshayahu 52:8. |
• Sefer Hamitzvos:
Shabbat, Menachem Av 30, 5775 · August 15, 2015
Today's Mitzvah
A daily digest of Maimonides’ classic work "Sefer Hamitzvot"
Positive Commandment 238 (Digest)
Damage Caused by a Ditch
"And if a man shall open a pit..."—Exodus 21:33.
We are commanded regarding the laws [of liability] that apply if a person digs a pit [and another's animal falls into it and is injured].
The 238th mitzvah is that we are commanded to follow the laws regarding damage caused by a pit in the ground.
The source of this commandment is G‑d's statement1 (exalted be He), "If a person digs a pit in the ground [...and an ox or donkey falls into it, the one responsible for the pit must pay for the damage...]."
The details of this mitzvah are explained in the 3rd and 5th chapters of tractate Bava Kama.
Rabbi Berel Bell is a well-known educator, author and lecturer. He and his family reside in Montreal, Canada.
From "Sefer Hamitzvot in English," published by Sichos in English.
FOOTNOTES
1.Ibid., 21:33.
Gerushin - Chapter Thirteen
Halacha 1
[The following rules apply with regard to] a woman who told her husband:1 "You divorced me in the presence of so and so and so and so," and those witnesses came and denied her statements.2 If afterwards, she and her husband departed [for a far-removed country] while peace prevails in the world at large,3and then she returns and says, "My husband died," her word is not accepted.
[The rationale is] that she is considered to be a liar, who desires to free herself from her ties to her husband.4 If one witness comes and testifies on her behalf that her husband died, she should not [be granted permission to] marry; we fear that perhaps she hired him.5 If, however, she marries, nevertheless, she need not leave [her second husband], for there is a witness who supports her.
Halacha 2
Similarly, when there is a state of war in the world at large, if [a woman] comes and says, "My husband died in the war,"6 her word is not accepted, even where the couple's relationship is peaceful.
[The rationale is that we fear that] she will rely on a situation in which the likelihood is that he will die - e.g., the people in the front and at the rear were killed, and her husband is in the center. She might think, "Since these were killed, and those were killed, he was killed surely together with them."
Halacha 3
If we are not aware of a war raging in the world, and a woman comes and says: "There was a war in a particular county and [my husband] died in that war," a priori, she should not marry. If, however, she marries, she need not leave [her second husband].9
Halacha 4
Similarly, if a woman says, "My husband died in a landslide," her word is not accepted. In the same vein, if an area was overrun by swarms of snakes and scorpions, and she says, "He was bitten by a snake - or a scorpion - and died," h er word is not accepted.10 [The rationale is] that she might rely on the fact that most men die because they were bitten in this manner, [and make a statement without knowing for certain whether or not her husband died].
Halacha 5
If [a woman] says, "They filled the house - or the cave - [in which we were hiding] with smoke; he died, but I was saved," her word is not accepted. [It is possible that] just as she [was saved] by a miracle, he could have been [saved by a miracle].
Halacha 6
If [a woman] says, "Gentiles - or thieves - attacked us. He was slain, and I was saved," her word is accepted, because it is not common for attackers to kill women.13 Thus, [it is not fitting] to say: Just as she was saved, he was saved.
Halacha 7
If an epidemic was raging throughout the world, and [a woman] says, "My husband died," her word is accepted.14 For [there is no widely accepted likelihood] with regard to a plague; everyone knows that in a time of plague some die and some live. And it is possible that strong young men will die from the plague, and elderly infirm people will be saved. And therefore, we do not suspect that she relied on the likelihood that most people died.
Halacha 8
It has already been stated15 that a witness who [did not see evidence of the person's death himself, but who] testifies after hearing the statements of another person is acceptable with regard to [the verification of the death of] a woman's [husband].
When does this apply? When the person heard a mentally competent adult - even a servant or a maid -servant - say that so and so died. If, however, a person heard from a mentally incompetent person or from a minor16 that an individual died, he may not testify [to that effect], nor do we rely on their statements.
Halacha 9
[There is an exception to the above principle.] If a person heard children saying: "We just came from so and so's funeral. These and these many people recited eulogies. The sage so and so and these and these others followed the bier. A nd this and this is what happened to the bier,"17 the person may offer this as testimony [regarding a man's death], and on this basis permission is granted for [the deceased's] wife to remarry.
Halacha 10
When a Jew says, "I killed so and so," [the man's wife] is allowed to remarry on the basis of his testimony. [The rationale is] a person's own testimony cannot be used to incriminate him. [Therefore, he is not disqualified, and] he did testify that [the husband] died.18
Halacha 11
It has already been stated19 that statements made by a gentile in the course of conversation can be used as a basis to grant [a woman] permission to remarry.
What is implied? If a gentile exclaimed: "How terrible is it that so and so died! He was so nice! He did so much for me!" Or if the gentile was talking and said, "We were traveling on our way, and to our amazement, so and so who was traveling with us fell down and died. We all were amazed that he died so suddenly." If he makes statements of this nature that indicate that he has no intention of giving testimony,20 his word is accepted.
Halacha 12
When a Jew hears a gentile [say] in the course of conversation [that a man died], he may testify that he heard these statements, and the man's wife may be granted permission to remarry on this basis.
When does the above apply? When there is no rationale to explain [why the gentile would make these statements if they were not true]. If, however, there could be a reason for the gentile's statements, and he is making them with another intent in mind [his word is not accepted].
For example, [a gentile] told a Jew, "Do such and such for me, or else I will kill you, as I killed so and so,"21 he is not making these statements in the course of conversation, for his intent is to cast fear upon his listener.
Halacha 13
Similarly, if a person heard the gentile legal authorities say, "We executed so and so," their word is not accepted.22 For they will use falsehood to reinforce their position and to cast fear [among the populace]. The same applies in all similar instances.
Halacha 14
Halacha 15
It has already been stated25 that a witness who testifies: "I heard that so and so died,"26 is acceptable with regard to testimony [concerning] a woman's [husband], and the woman may remarry on this basis. [This applies even when] he heard the statements from a woman or from a servant.
If, however, a witness, a woman or a servant says: "So and so died; I saw that he died," the witness should be asked:27 "What did you see? How do you know that he died? " If the witness responds with clear [testimony], his word is accepted. If the witness replies, describing a situation in which it is highly likely that the person would have died, we do not grant his wife license to remarry. For testimony concerning a man's death [can be accepted] only when [the witness can say] with certainty that he saw the man die, and there is no doubt concerning the matter.
Halacha 16
What is implied? If a man was seen falling into the sea, even if he fell into the ocean, testimony should not be offered that the man died, because it is possible that he was cast away or escaped [from the sea] from an [unseen] place.28
If he fell into a body of water with definite boundaries - e.g., a cistern or a cavern in which a person standing [at the edge] could see the entire periphery - testimony that the man died may be offered, and license may be granted for his wife to remarry, provided [the witnesses] remained there for a period of time beyond which it was impossible for the man to live,29 and saw that he did not ascend [from the body of water].
Halacha 17
If [a man] fell into a lair of lions, leopards or the like, testimony that he died may not be offered,32 for it is possible that they will not eat him. If he fell into a pit of snakes and scorpions,33 into a furnace,34 or into a boiling caldron filled with wine or oil,35 or his esophagus and windpipe were slit - either in their majority36or in their entirety - testimony may be offered that he died, even if he arose and fled. For [in these situations], he ultimately will die.
Similar laws apply in all situations in which it is impossible that the person will live, but rather will die shortly afterwards. Testimony may be offered that he [died].
Halacha 18
If we see a man hanging37 and a vulture eating from his body, testimony may not be offered that he died. [This applies] even if he was stabbed with a lance, or arrows were shot at him.38
If, however, we see the vulture eating from a place that would cause him to die - e.g., his brain, his heart or his intestines, one may offer testimony that he died.
Halacha 19
[The following laws apply when] one witness testifies, "I saw that he died in a war or in a landslide, or that he drowned in the ocean39 and died," or mentioned other causes that would probably lead to death. If he says, "I buried him," his statements are accepted,40 and she may be granted permission to remarry. If he did not say, "I buried him," she should not be granted permission to remarry. If, however, she remarries, she need not leave [her second husband].41
Halacha 20
Similarly, if one witness42 testifies that a woman's husband drowned in the sea or in a body of water that does not have a defined periphery, he did not emerge [from the water], all traces of him have disappeared,43 and his existence has been forgotten, the woman should not [be granted license to] remarry on this basis, as we have explained.44
If, however, she remarries,45 she need not be forced to leave her second husband. Even if a gentile said in the course of conversation, "So and so drowned at sea," and on this basis [the man's wife] remarried, she need not be forced to leave her second husband. Nevertheless, [in the above instances,] the sage who gave permission for her to remarry should be placed under a ban of ostracism.46
Halacha 21
[The following rules apply when the body of a man who was] slain or died of natural causes is discovered. If his forehead, his nose and his facial features are intact, and his identity can be established based on them,47 testimony concerning his death may be offered.
If, however, any of these identifying factors is missing, even if there are signs [through which he can be identified]48 on his body and on his personal artifacts,49 even if one of those signs is a mole,50 testimony concerning his death should not be offered.
When does [the leniency mentioned in the first clause] apply? When the corpse was seen within three days of his murder or death. After three days have passed, testimony concerning his death should not be offered, because his facial features [may have] become distorted.51
Halacha 22
[The following rules apply when a man] drowned at sea and was cast out onto dry land. Although several days have passed, if his facial features and his nose can be identified,52 testimony may be offered with regard to his [death], for in water the features of a corpse do not become distorted until an extremely long period of time has passed.53
If the corpse lay on dry land for twelve hours54 after being cast out of the sea and the corpse became bloated,55 testimony may not be offered because [his features] have been distorted.56 When we look at the form [of a corpse] in order to identify [a man] to offer testimony with regard to his [death], [it is acceptable if] we look at [the corpse] even by candlelight or by moonlight.57
Halacha 23
[The following rule applies when] we see a person at a distance and he says that he is so and so, the son of so and so, or so and so from a particular place,58 and that he has been bitten by a snake and is dying. Even if we go [to the place where he was standing], find [the corpse and discover] that its features have changed to the extent that it is no longer distinguishable, we may, nevertheless, [grant license for] his wife [to] remarry.59
Halacha 24
[A person's testimony is effective in the following instance.] A person came and said: "A court - or people - told me, when you arrive at this and this place,60 tell them that Yitzchak, the son of Michael, died." When this person came to that place and delivered the message - although he is not aware of the identity [of the deceased] - since [the people at that place] do know his identity, [the deceased's] wife [may be granted] permission [to remarry]. We do not presume that perhaps it was another person named Yitzchak, the son of Michael, who died.61
Halacha 25
When a Jew and a gentile left from our [location] for a different destination, and the gentile came and said in the course of conversation: "The man who left [this city] with me died," [the deceased's] wife [may be granted license to] remarry. [This applies] even when the gentile does not know the identity of the man, provided he says: "I buried him."62
Halacha 26
Similarly, when ten men were taken together while shackled in chains or tied by heavy ropes used to lead camels63 or the like,64 from one place to another,65and a gentile came and said in the course of conversation that all ten men who went out while tied died, and he buried them,66 their wives [may be granted license to] remarry.
Halacha 27
If a Jew says: "A Jewish man died in our company in this and this place. These and these were his facial features. These and these were signs of identification," we do not make a guess and say that it was probably so and so.67 Rather [the person is not considered to have died] until a witness mentions his name and the name of his city.68
Halacha 28
[The following rule applies if] a document was found saying: "So and so, the son of so and so, died," or "So and so, the son of so and so, was killed": If it can be determined that this was written71 by a Jew,72 [the man's] wife [may be given permission to] marry.73
Similarly, when a person has lost the power of speech, and he was tested, as he would be tested with regard to a get,74 and it is proven that he is mentally sound, if he writes that so and so died, we may rely on his writing, and [the deceased's] wife [may be given permission to] marry.75
We do not follow the standard process of interrogation76 with regard to witnesses who testify [concerning the death of] a woman's [husband]. For our Sages did not speak about establishing stringencies regarding such matters. [Indeed, their approach was characterized by] leniency in order to permit a woman without a husband [to remarry].77
Halacha 29
Do not wonder at the fact that our Sages discharged78 the prohibition [against a married woman], which is considered a very severe matter, on the basis of the testimony of a woman, a servant or a maidservant, statements made by a gentile in the course of conversation, a written statement or [testimony] that was not investigated by the ordinary process of interrogation, as we have explained.
[These leniencies were instituted] because the Torah requires only testimony of two witnesses, and all the other details of the laws of witnesses with regard to matters that cannot be verified definitively except via witnesses and their testimony - e.g., that one person killed another, or that one person lent money to another. When, by contrast, the matter may be verified definitively without the testimony of a witness, and the witness cannot justify [his statements] if they are not true - e.g, when one testifies that a person died,79 the Torah did not necessitate [that the requirements of formal testimony be met in these instances]. For it is unlikely that a witness will testify falsely.80
For this reason, our Sages [extended] the leniency with regard to this matter and accepted the testimony of a single witness that is based on the testimony of a maidservant, [testimony] from a written document, and [testimony] that was not investigated by the ordinary process of interrogation. [These leniencies were accepted] so that the daughters of Israel will not be forced to remain unmarried.
Blessed be the Merciful One, who grants assistance.
FOOTNOTES 1.
Note the ruling of the Chelkat Mechokek 17:93, who explains that the Rambam's decision applies only in an instance where the woman has already made false statements in the presence of a court. The fact that a couple constantly quarrel is not considered serious enough to warrant the stringencies mentioned in this halachah.
2.
And so, the couple were forced to remain married. Chapter 12, Halachah 15 describes a situation when a man disappears "when their relationship is peaceful, and peace prevails in the world at large." All the laws that follow in that chapter deal with such situations. This chapter describes situations where these conditions do not prevail, and hence more stringent laws apply.
3.
I.e., the stringencies apply even where peace prevails in the world at large, because of the strife that exists between the couple.
4.
Yevamot 116a records a difference of opinion between the Sages regarding the rationale for this ruling. Rav Chananiah states that the reason is that we suspect that the woman is lying. Rav Simi bar Ashi states that we suspect that in an instance where her husband appears to be dying, the woman will not be careful and will conclude that he died, even though he remained alive.
The Rambam's citation of the first opinion in this halachah represents a reversal of his thinking. For in his Commentary on the Mishnah (Yevamot 15:1), he mentions the latter view.
According to the Rambam's opinion stated here, even if the woman says that she buried her husband, her word is not accepted (Hagahot Maimoniot; Ramah, Even HaEzer 17:48).
5.
The Maggid Mishneh notes that this issue is left unresolved by Yevamot 116b, and therefore, the Rambam chooses the more stringent view. The Maggid Mishneh questions why the Rambam ignores the rationale given by the Talmud - that in most cases, a woman who is granted permission on the basis of the testimony of one witness is careful and thoroughly investigates the matter before she marries, but in this instance, because of her hatred of her husband, she will not make such an investigation - and offers another rationale that is not mentioned there.
Rav Eliyahu Mizrachi (in a responsum quoted by the Kessef Mishneh) offers a resolution to this matter, explaining that the Rambam accepts the testimony of a single witness in such instances without question, because we assume that a person will not lie in an instance where the truth will shortly be revealed. (See the notes at the conclusion of this chapter.) Nevertheless, since the question is left unresolved by our Sages, and a very severe matter is involved, the Rambam does not desire to offer a leniency that was not accepted by our Sages. Therefore, he offers a different rationale, even though it was not mentioned in the Talmud.
On the basis of this explanation, Rav Eliyahu Mizrachi explains that if a witness comes to the court on his own initiative, the woman is granted license to remarry even when differences existed between her and her husband previously. The Chelkat Mechokek 17:95, however, states that this leniency is not accepted by the latter authorities.
6.
If, however, the woman says that her husband died near the battlefront, but not in battle, her word is accepted (Ramah, Even HaEzer 17:48).
7.
There is a slight difficulty with the Rambam's ruling, because the rationale that the Rambam mentioned previously - that she suspects that her husband died, and because of the high likelihood is willing to make such statements even though she has no definite knowledge - seemingly does not apply when the woman says: "I buried him." For if a person is buried, he is definitely dead.
[For this reason, the Rashba - and his opinion is quoted as a minority view by the Shulchan Aruch(Even HaEzer 17:48) - rules that if the woman says that she buried her husband, her word is accepted.]
In the responsum of Rav Eliyahu Mizrachi quoted by the Kessef Mishneh, it is explained that the woman will be afraid to tarry on a battlefield and bury her husband. Nevertheless, since she is certain that he died, she will exaggerate and say that she buried him, although she did not. Alternatively, the Levush states that we suspect that the fear and confusion of wartime is so great that she may have in fact buried a man, but she might have mistaken another man for her husband.
8.
I.e., although war was raging nearby, her husband was not involved in the war and died at home. Her word is accepted, because we do not suspect that she will intentionally lie. And at home, away from the battlefront, she will know for certain whether or not her husband died.
9.
On the one hand, if the woman desired to lie, she could have offered a better lie and not mentioned the war at all (miggo). Nevertheless, when a woman says that her husband died in a war, our suspicion is that she erred and thought her husband died, even when he did not. Therefore, at the outset, she should not be granted permission to marry. If, however, she does marry, since there are grounds to believe her statement, we do not force her to leave her second husband.
The Rambam's ruling is quoted by the Shulchan Aruch (Even HaEzer 17:49). The Ramah, however, follows the ruling of Rabbenu Asher, who maintains that if the woman marries, she should be forced to leave her second husband.
10.
If, however, the woman says that her husband died in bed at those times, her word is accepted. If she says that he died in a landslide or was bitten by a swarming mass of snakes, and she buried him, according to the Rambam her word is not accepted. According to the Rashba, her word is accepted if she says that she buried him [Maggid Mishneh; Ramah (Even HaEzer 17:51)].
11.
This law applies even if she says that he died on his bed (Ramah, Even HaEzer 17:53). We fear that she left her husband sick, without any source of nurture, and assumed that he died without knowing for certain (Yevamot 114b).
12.
In the previous instance, we do not fear that she is lying, but rather merely exaggerating and relying on the likelihood that he died. We do not, however, fear that she would exaggerate and say that she buried him if it were not true.
The woman's word is accepted with regard to a famine, while it is not with regard to war, because of the obvious difference between the two instances. In wartime, there is an immediate danger and everyone is worried about saving his own life (Ibid.).
13.
Rashi (Yevamot 115a, Avodah Zarah 25b) states that the attackers will keep the woman alive in order to rape her. Tosafot (Avodah Zarah 25b) explains that a woman is not considered likely to fight back, and her physical weakness arouses mercy. Therefore, she is left alive.
14.
Rabbenu Asher rules that the woman's word is not accepted. Rabbenu Nissim, moreover, maintains that that is the proper reading in the Mishneh Torah. Our translation follows the standard printed texts of the Mishneh Torah and the authoritative manuscripts most widely available.
The Shulchan Aruch (Even HaEzer 17:55) states that the woman's word is accepted, while the Ramah quotes Rabbenu Asher's view.
15.
Chapter 12, Halachah 15.
16.
On the basis of Hilchot Yibbum 4:31, the Beit Yosef (Even HaEzer 17) and others explain that here the Rambam is talking about a minor who is not intellectually mature. The testimony of a minor who is intellectually mature is accepted (see the following halachah). In the Shulchan Aruch(Even HaEzer 17:13), Rav Yosef Karo quotes the Rambam's wording exactly. The Turei Zahav17:9 and the Beit Shmuel 17:33, however, make the above distinction.
17.
Yevamot 121b explains that all these details are necessary, because it is possible that the children are play-acting and buried an insect that they called by the person's name. If, however, their statements reflect sufficient details to indicate that the funeral actually took place, they may serve as the basis for license to be granted a woman to remarry.
18.
This is one of the classic examples of the principle palginin diburo, "we divide his statement." I.e., we accept his word with regard to the fact that so and so died. We discard the portion of his statement in which he said that he himself killed him.
If we accepted that aspect of the statement as well, he would no longer be acceptable as a witness. For his deed would cause him to be disqualified on the basis of Scriptural law. (See alsoHilchot Edut 12:2.)
19.
Chapter 12, Halachah 16.
20.
If the gentile is making these statements with the intent that attention be paid to them, there is reason to suspect that perhaps he intends to create legal problems for a Jewish person. If, however, he makes statements casually, in the course of conversation, we do not suspect that a gentile will desire to cause problems for a Jew (Beit Shmuel 17:38).
As reflected in the halachot that follow, we do fear that a gentile may lie, if doing so will enhance his position, and we fear that he will rush to the conclusion that a man died when he is in fact alive.
21.
If, however, a gentile says: "I killed so and so," without any apparent intent to cast fear upon his listeners, the deceased's wife is allowed to remarry (Shulchan Aruch, Even HaEzer 17:7).
22.
If, however, other gentiles relate in the course of conversation that a Jew was killed by gentile legal authorities, their word is accepted (Ramah, Even HaEzer 17:14). As indicated by the Ramah, there is a difference of opinion whether it is acceptable if gentile legal authorities report that a person was executed, but do not say that they performed the execution.
If gentile government authorities report that a person has died or been killed (but not executed by a court of law), their statements are accepted by many halachic authorities. A distinction should be made between the government authorities in democratic countries where freedom of speech prevails, and totalitarian governments that act arbitrarily without consideration of the populace.
23.
The Chelkat Mechokek 17:29 states that this law applies even in instances where the gentile's original statements were not sufficient to serve as a basis for remarriage.
24.
If, however, the gentile was asked direct questions first, and then in the course of conversation said that a man died, his word is not accepted (Ramah, Even HaEzer 17:15).
25.
Chapter 12, Halachah 15.
26.
I.e., as reflected by the second half of the halachah, this applies if the witness does not know any details of the person's death at all. Since we do not know any details of the situation, we assume that his statements are true. When, however, the situation can be investigated, the court is obligated to do so.
This is the subject of the remainder of the chapter and also the concern of many of the responsa issued by our Sages concerning this issue throughout the generations. For quite often, the evidence of a man's death and the identification of his corpse were only partial, and the Rabbis had to clarify whether the testimony was sufficient to serve as grounds for his wife to remarry.
27.
As stated in Halachah 28, the formal process with which witnesses are questioned is not employed with regard to testimony of this nature. Nevertheless, enquiry should be made lest the witness had erred and made his statements on the basis of likelihood and not actual fact.
28.
The commentaries explain that according to Scriptural law, the man is considered to be dead. Nevertheless, our Sages enforced stringencies and forbade a woman from remarrying in such an instance. (See Halachah 20.)
29.
The Pitchei Teshuvah 17:134 quotes many classical commentaries that maintain (based onYevamot 121a) that this duration of time is considered to be three hours. Nevertheless, the later commentaries are more lenient and consider a far shorter period to be sufficient.
30.
The Maggid Mishneh quotes the Rashba as stating that this applies only when the man was tied to a rope or chain when cast into the water, and then a limb was lifted out, or if the limb was lifted up in a net afterwards, and it could definitely be identified as the man's. When quoting this law, theShulchan Aruch (Even HaEzer 17:32) incorporates these concepts.
31.
In this instance as well, the Maggid Mishneh quotes the Rashba as stating that even when our Sages stated that a person could not live without a particular limb, they did not intend that he would necessarily die immediately, and it is possible that the person could live for twelve months. Therefore, even when such a limb is discovered, the woman is required to wait twelve months before remarrying. The Shulchan Aruch (ibid.) incorporates these concepts into its restatement of the law.
32.
In this instance, however, the Rambam states that the likelihood that the man died is so great that his heirs may take possession of his inheritance (Hilchot Nachalot 7:3).
33.
Based on Yevamot 121a, the Kessef Mishneh explains the difference between a lion's lair and a pit of snakes as follows: A lion's lair is usually wide, and so the person will not necessarily provoke the lions. A pit of snakes is small, and the man will step on the snakes, and this will provoke them.Tosafot adds that we do not say that perhaps a miracle occurred to him as occurred to Daniel.
34.
The Maggid Mishneh quotes the Rashba as stating that this applies only when the furnace is so deep that he cannot emerge from it. This qualification is quoted by the later authorities (Chelkat Mechokek 17:57; Beit Shmuel 17:92).
35.
The Maggid Mishneh quotes the Rashba as stating that the same laws apply with regard to a caldron of water. When quoting this law, the Shulchan Aruch (Even HaEzer 17:30) incorporates these concepts.
36.
For once the majority of these organs are slit, we can be certain that the person will die.
37.
The Hebrew word צלוב is translated both as crucified (the method of execution often used by the Romans in the Talmudic period) and as hung. We have chosen the latter term to emphasize the rulings of the later halachic authorities. The Bayit Chadash (Even HaEzer 17) rules that if a person is seen hanging, testimony concerning his death may be offered. The Chelkat Mechokek 17:58 and the Beit Shmuel 17:94 dispute this and cite instances in which a person who had been hanged was subsequently rescued.
38.
If, however, he was stabbed or shot in a place that would kill him, testimony that he died may be offered (Beit Yosef, Even HaEzer 17; Beit Shmuel 17:94).
39.
The Maggid Mishneh explains that this refers to an instance where the person remained there and watched for an amount of time sufficient for a person to die without seeing the person emerge from the water. This is substantiated by the later authorities (Chelkat Mechokek 17:61). If the witness does not observe the sea, watching for the person to emerge for that length of time, more stringent rules apply.
40.
By saying he buried the deceased, the witness erases any questions of doubt that might exist regarding whether or not the person actually died. Alternatively, because he buried him, he will have seen his features closely and will not mistakenly identify him.
As stated in Halachah 3, the testimony of a woman who says that her husband died at war is not accepted, even if she says that she buried him. The commentaries, however, differentiate between the two instances, explaining that since the woman's husband is involved, she will be more emotionally upset and less objective. Hence, it is more likely that she would mistake the deceased's identity.
Alternatively, she desires to remarry, and thus she will stretch the truth slightly to be granted that license, while an outsider will not take such liberties.
With regard to the concept of burial in relation to a person who drowned, there are three opinions mentioned by the Rabbis:
a) The Kessef Mishneh states that if the witness sees that the person did not emerge after waiting the length of time in which one would ordinarily drown, he did not have to bury the deceased in order to testify. (Kin'at Eliyahu notes that this interpretation makes the following halachah appear slightly redundant.)
b) The Chelkat Mechokek 17:62 states that the intent was that we saw the corpse after it was taken out from the water.
c) The Noda BiY'hudah (Volume I, Even HaEzer, Responsum 28) states that the intent is that the drowned man was actually buried. For there are times when a person is taken out of the sea and presumed dead, and then is revived afterwards.
41.
Yevamot 115a states that the question in this instance is whether the testimony of one witness is accepted, because the matter will surely be revealed in the near future - in which case the woman would be permitted to remarry - or because we rely on the fact that the woman will carefully investigate the matter before she remarries, and in this instance, since it is highly likely that her husband died, she will rely on the likelihood and not make a thorough investigation. Therefore, she should not be granted permission to remarry. Since the question is left unresolved, the ruling given by the Rambam applies.
In the responsum quoted by the Kessef Mishneh, Rabbi Eliyahu Mizrachi explains that - as reflected by the concluding halachah of this chapter - the Rambam maintains that the testimony of one witness is accepted, because the matter will surely be revealed in the near future. Nevertheless, he still maintains that, at the outset, the woman should not be granted permission to remarry, because in these situations it is possible for a person to think that a man has died, even though he is actually alive.
42.
The Maggid Mishneh emphasizes that the same ruling is given even if two or more witnesses offer the same testimony. As long as a body of water does not have a defined periphery, these laws apply.
43.
This also reinforces the presumption that he died, for if he had remained alive, most likely he would have returned home or divulged his identity in another manner.
44.
Halachah 16. Note also the Rambam's comments in Hilchot Nachalot 7:3:
When a man drowned in water that does not have a defined periphery, witnesses [testify] that they saw him drown, and all traces of him have disappeared, his heirs may take possession of his estate, despite the fact that a priori, his wife is not granted permission to remarry.
The reason stringency was taken in these matters is [the severity of] a prohibition punishable bykaret. But with regard to financial matters, if witnesses testify concerning an instance in which we can assume that the man died..., all traces of him have disappeared, and we have heard that he died, the heirs may take possession of his estate.
45.
The Ramah (Even HaEzer 17:34) states that this applies only when the woman remarried after receiving license from a Rabbinic authority. If she remarried on her own initiative without consulting an authority, she should be forced to leave her second husband.
46.
This applies only when the sage issued this ruling knowingly. If, however, he issued the ruling in error, he is not censured in this manner (Chelkat Mechokek 17:64, based on Yevamot 121a).
47.
Yevamot 120a quotes Isaiah 3:9: "The recognition of their countenance testifies against them," as support for this concept.
48.
The Maggid Mishneh and the Kessef Mishneh differentiate among three types of signs: a) simanim g'ru'im, signs that are not definitive, b) simanim muvhakim, signs that are definitive, c) simanim muvhakim b'yoter, signs that are extremely definitive.
Signs that are not definitive are never effective means of identification. Signs that are definitive are effective with regard to the identification of lost objects and other questions of monetary law, as stated in Hilchot Gezelah Va'Avedah 13:3-5. They are not, as stated in this halachah, effective with regard to the laws of marriage and divorce. (See also Hilchot Nachalot 7:3.) Signs that are extremely definitive - e.g., a get has a hole next to a particular letter, as stated in Chapter 3, Halachah 11 - may be relied upon with regard to the laws of marriage and divorce.
Similarly, if there is an extremely definitive sign on a corpse, it may be used as evidence to identify the body. These distinctions are also reflected in the statement of the law in the Shulchan Aruch(Even HaEzer 17:24).
49.
With regard to personal artifacts, there is a further problem. Even if there are very distinctive signs on these articles, they cannot serve as a means of identification, because it is possible that they were lost or stolen and taken by another man. See Shulchan Aruch (op. cit.).
50.
There are opinions that maintain that if the person can pinpoint exactly the place of the mole, it may be used as a sign of identification (Beit Shmuel 17:71).
51.
I.e., even if the witnesses think that they can identify the corpse, their testimony cannot be relied on, because the person's facial features may have been distorted.
52.
Yevamot 121a explains that lying in water generally causes the flesh of a corpse to shrink, and the person's features remain distinct.
53.
Yevamot, ibid., mentions a corpse being identified after being in the Jordan River for 17 days.
54.
Once a corpse that has been lying in the water is brought to dry land, its features will begin to lose their distinctive qualities rapidly.
There are several different versions of this halachah. We have chosen to follow the standard printed text in our translation. The Kessef Mishneh states that the proper version should be "if the corpse lies on dry land for hours" - i.e., it need not be identified immediately, but it cannot wait any significant period. The Shulchan Aruch (Even HaEzer 17:26) states that the body must be identified immediately after it emerges onto dry land. The Beit Shmuel 17:80, however, mentions that an interval of an hour is granted.
55.
The Maggid Mishneh notes that the Rambam's statement of this law is conditional, "If the... corpse became bloated," implying that if we see that the corpse has not become bloated, we may identify it. The Rashba, by contrast, states we suspect that the facial features of a corpse will become distorted after a brief amount of time, and does not allow room for leniency.
Even according to this conception, leniency has been granted by the later authorities when a corpse was removed frozen from a river, and it took several hours to thaw.
56.
In restating this law, there are several points mentioned by the Shulchan Aruch (ibid.): a) the corpse may not have a wound. If the body was wounded, we fear that its features will be distorted; b) even if it is less than three days after the deceased's passing, if his corpse lay in water for a significant period, it must be identified directly after its discovery.
The Ramah adds that extremely distinctive signs may be used as a means of identification even though the body has lain on dry land for a long period.
57.
Although these sources of light are not overly bright, our Sages felt that they were sufficient to enable a person to identify a corpse. There is no need to wait until daylight.
58.
The Tur (Even HaEzer 17) states that the person must mention both these factors: his father's name and his city. The Beit Shmuel 17:66 states that, although in general one of these means of identification would have been sufficient, both are necessary because the person's facial features have changed. The Chelkat Mechokek 17:40, however, states that when it is obvious that the person knows the place from which the person came, the ruling of the Rambam and the Shulchan Aruch (Even HaEzer 17:23) may be followed, and only one factor need be mentioned. This is also borne out by the following halachah and its source in Yevamot 115b.
59.
I.e., we do not assume that the person was lying, but instead suppose that the poison caused his features to change (Meiri).
Yevamot 122a, the source for this halachah, mentions that perhaps the statements were made by a demon. The Rambam, however, does not mention this possibility, in keeping with his conception (see The Guide for the Perplexed, Vol. III, Chapter 46), that demons are not a relevant halachic phenomenon.
60.
I.e., he was informing the Rabbinical court of that city that one of the Jewish inhabitants had died (Kessef Mishneh).
61.
The Ra'avad and the Maggid Mishneh mention that this principle applies only when we do not know of another person in the city with that name, or we know that this other person is still alive. The Shulchan Aruch (Even HaEzer 17:18) incorporates these additions into its statement of this law.
62.
The Maggid Mishneh explains that the Rambam's ruling is that when a gentile knows the name of a Jew, it is unnecessary for him to say that he buried him, when relating that he died. If, however, the gentile did not know the identity of the Jew, it is necessary for him to say that he buried him.
The Tur (Even HaEzer 17) and other authorities do not agree with the Rambam with regard to this point and maintain that the gentile's statements are accepted even when he does not say that he buried the Jew. The Shulchan Aruch (Even HaEzer 17:17) mentions both opinions, but appears to favor the latter view.
63.
Our translation is based on the gloss of Rav Kapach, who cites a similar interpretation mentioned by the Razeh.
64.
From the Rambam's words, it appears that the men must be tied together. Otherwise, we suspect that one of them left and was replaced by another. In his commentary on the source for this law (Yevamot 122a), Rashi does not share this conception and maintains that the number of men itself is sufficient to serve as identification.
65.
The Noda BiY'hudah (Even HaEzer, Volume I, Responsum 36) notes that the Rambam requires that a) a specific number of men were mentioned, b) that their starting point and destination were mentioned, and c) that they were chained together.
The Noda BiY'hudah questions these requirements, because the standard text of Yevamot 122a (the Rambam's source) mentions two stories: one of men traveling in chains and one of sixty men traveling to Betar. The Rambam appears to have fused the two stories together, adopting the requirements mentioned by both and thus being more stringent than his source.
The Noda BiY'hudah reconciles this difficulty by referring to the statement of these incidents in Rabbenu Yitzchak Alfasi's Halachot, which follows a different version from our text of Yevamot. Rabbenu Yitzchak Alfasi mentions "two men traveling in chains to Antioch." Since the Rambam was a student of one of the disciples of Rabbenu Yitzchak Alfasi, it is likely that the Rambam also had the same version of this passage.
66.
Here too, the Rambam is referring to an instance in which the gentile did not know the identity of the people who died. (See the notes on the previous halachah.)
67.
This applies even if the person is missing, and there are no traces of him left.
68.
According to the Rambam and the Shulchan Aruch, alternatively, a person's name and his father's name.
69.
Our wording is based on the gloss of the Ramah (Even HaEzer 17:19), who states that this law applies even if the report is given by a gentile in the course of conversation.
70.
In this instance as well, the name of the deceased is not mentioned.
71.
The Maggid Mishnehates that the note must also be signed, andwe must see that the signature was written by a Jew. The signature need not, however, be verified. (See Shulchan Aruch, Even HaEzer 17:11 and commentaries.)
72.
Regardless of the language in which the note was written, if it was written by a Jew, it is acceptable. If, however, it was written by a gentile, it is not acceptable even if it is written in Hebrew. For a gentile's statements are acceptable only when made in the course of conversation (Maggid Mishneh).
In his Bedek HaBayit (Even HaEzer 17), Rav Yosef Karo asks why a statement written by a gentile in the course of conversation is not effective. And in his Shulchan Aruch (loc. cit.), he rules that it is.
73.
This is a leniency accepted in order to allow a woman to remarry. Generally, testimony must be given verbally and not in writing. (See Hilchot Edut 3:4.)
74.
See Chapter 2, Halachah 16.
75.
See Hilchot Edut 9:11, which explains that such testimony is ordinarily not accepted by a Rabbinic court. An exception is made in this instance in order to allow a woman to remarry.
76.
Which includes questions defining the exact time and place of the event. (See Hilchot Edut 1:4.)
77.
Moreover, even if slight contradictions arise regarding minor points of the testimony of two witnesses, the testimony is nevertheless accepted (Shulchan Aruch, Even HaEzer 17:21).
In one of his responsa (quoted by the Ramah, op. cit.), the Rambam writes: "Whoever is stringent and interrogates witnesses exactingly is not conducting himself properly, and his approach does not find favor in the eyes of our Sages." The Ramah, however, continues that if testimony appears contrived to the court, they must thoroughly investigate the matter.
78.
I.e., these are leniencies that our Sages instituted. The acceptance of the testimony of one witness, by contrast, is a leniency implied by Scriptural law.
This follows the interpretation of the Rambam's statements here by the Noda BiY'hudah (Even HaEzer, Volume I, Responsa 27 and 33). There is, however, an apparent contradiction based on the Rambam's statements in Hilchot Edut 5:2.
79.
I.e., if the man presumed dead returns, it will be obvious that the witness lied.
80.
See similar statements in Hilchot Kiddush HaChodesh 3:14 and Hilchot Yibbum VaChalitzah 4:31.
The Ra'avad and others note that our Sages (Yevamot 93b, 115a) mention two rationales why a woman should be permitted to remarry, the one cited by the Rambam and also because of the severe consequences that she will bring upon herself if her husband is found alive (see Chapter 10, Halachah 7), a woman will investigate the matter thoroughly and will not remarry unless she is certain that he has actually died. The Talmud appears to imply that these rationales are contradictory and cites cases in which one would apply, but not the other.
The Noda BiY'hudah (loc. cit.) explains that the Rambam sees the two rationales as complementary. Ordinarily, when a matter can easily be verified - e.g., a question of whether or not chalitzah was performed - the statement of one witness is acceptable without question. In this instance, however, it is not always easy to verify whether in fact the man died, and therefore the rationale that the woman must investigate the matter is necessary. For this reason, in all the instances where the Talmud implies that one rationale would conflict with another, the Rambam reaches a conclusion that takes both rationales into consideration.
Halacha 1
[The following rules apply with regard to] a woman who told her husband:1 "You divorced me in the presence of so and so and so and so," and those witnesses came and denied her statements.2 If afterwards, she and her husband departed [for a far-removed country] while peace prevails in the world at large,3and then she returns and says, "My husband died," her word is not accepted.
[The rationale is] that she is considered to be a liar, who desires to free herself from her ties to her husband.4 If one witness comes and testifies on her behalf that her husband died, she should not [be granted permission to] marry; we fear that perhaps she hired him.5 If, however, she marries, nevertheless, she need not leave [her second husband], for there is a witness who supports her.
Halacha 2
Similarly, when there is a state of war in the world at large, if [a woman] comes and says, "My husband died in the war,"6 her word is not accepted, even where the couple's relationship is peaceful.
[The rationale is that we fear that] she will rely on a situation in which the likelihood is that he will die - e.g., the people in the front and at the rear were killed, and her husband is in the center. She might think, "Since these were killed, and those were killed, he was killed surely together with them."
Halacha 3
If we are not aware of a war raging in the world, and a woman comes and says: "There was a war in a particular county and [my husband] died in that war," a priori, she should not marry. If, however, she marries, she need not leave [her second husband].9
Halacha 4
Similarly, if a woman says, "My husband died in a landslide," her word is not accepted. In the same vein, if an area was overrun by swarms of snakes and scorpions, and she says, "He was bitten by a snake - or a scorpion - and died," h er word is not accepted.10 [The rationale is] that she might rely on the fact that most men die because they were bitten in this manner, [and make a statement without knowing for certain whether or not her husband died].
Halacha 5
If [a woman] says, "They filled the house - or the cave - [in which we were hiding] with smoke; he died, but I was saved," her word is not accepted. [It is possible that] just as she [was saved] by a miracle, he could have been [saved by a miracle].
Halacha 6
If [a woman] says, "Gentiles - or thieves - attacked us. He was slain, and I was saved," her word is accepted, because it is not common for attackers to kill women.13 Thus, [it is not fitting] to say: Just as she was saved, he was saved.
Halacha 7
If an epidemic was raging throughout the world, and [a woman] says, "My husband died," her word is accepted.14 For [there is no widely accepted likelihood] with regard to a plague; everyone knows that in a time of plague some die and some live. And it is possible that strong young men will die from the plague, and elderly infirm people will be saved. And therefore, we do not suspect that she relied on the likelihood that most people died.
Halacha 8
It has already been stated15 that a witness who [did not see evidence of the person's death himself, but who] testifies after hearing the statements of another person is acceptable with regard to [the verification of the death of] a woman's [husband].
When does this apply? When the person heard a mentally competent adult - even a servant or a maid -servant - say that so and so died. If, however, a person heard from a mentally incompetent person or from a minor16 that an individual died, he may not testify [to that effect], nor do we rely on their statements.
Halacha 9
[There is an exception to the above principle.] If a person heard children saying: "We just came from so and so's funeral. These and these many people recited eulogies. The sage so and so and these and these others followed the bier. A nd this and this is what happened to the bier,"17 the person may offer this as testimony [regarding a man's death], and on this basis permission is granted for [the deceased's] wife to remarry.
Halacha 10
When a Jew says, "I killed so and so," [the man's wife] is allowed to remarry on the basis of his testimony. [The rationale is] a person's own testimony cannot be used to incriminate him. [Therefore, he is not disqualified, and] he did testify that [the husband] died.18
Halacha 11
It has already been stated19 that statements made by a gentile in the course of conversation can be used as a basis to grant [a woman] permission to remarry.
What is implied? If a gentile exclaimed: "How terrible is it that so and so died! He was so nice! He did so much for me!" Or if the gentile was talking and said, "We were traveling on our way, and to our amazement, so and so who was traveling with us fell down and died. We all were amazed that he died so suddenly." If he makes statements of this nature that indicate that he has no intention of giving testimony,20 his word is accepted.
Halacha 12
When a Jew hears a gentile [say] in the course of conversation [that a man died], he may testify that he heard these statements, and the man's wife may be granted permission to remarry on this basis.
When does the above apply? When there is no rationale to explain [why the gentile would make these statements if they were not true]. If, however, there could be a reason for the gentile's statements, and he is making them with another intent in mind [his word is not accepted].
For example, [a gentile] told a Jew, "Do such and such for me, or else I will kill you, as I killed so and so,"21 he is not making these statements in the course of conversation, for his intent is to cast fear upon his listener.
Halacha 13
Similarly, if a person heard the gentile legal authorities say, "We executed so and so," their word is not accepted.22 For they will use falsehood to reinforce their position and to cast fear [among the populace]. The same applies in all similar instances.
Halacha 14
Halacha 15
It has already been stated25 that a witness who testifies: "I heard that so and so died,"26 is acceptable with regard to testimony [concerning] a woman's [husband], and the woman may remarry on this basis. [This applies even when] he heard the statements from a woman or from a servant.
If, however, a witness, a woman or a servant says: "So and so died; I saw that he died," the witness should be asked:27 "What did you see? How do you know that he died? " If the witness responds with clear [testimony], his word is accepted. If the witness replies, describing a situation in which it is highly likely that the person would have died, we do not grant his wife license to remarry. For testimony concerning a man's death [can be accepted] only when [the witness can say] with certainty that he saw the man die, and there is no doubt concerning the matter.
Halacha 16
What is implied? If a man was seen falling into the sea, even if he fell into the ocean, testimony should not be offered that the man died, because it is possible that he was cast away or escaped [from the sea] from an [unseen] place.28
If he fell into a body of water with definite boundaries - e.g., a cistern or a cavern in which a person standing [at the edge] could see the entire periphery - testimony that the man died may be offered, and license may be granted for his wife to remarry, provided [the witnesses] remained there for a period of time beyond which it was impossible for the man to live,29 and saw that he did not ascend [from the body of water].
Halacha 17
If [a man] fell into a lair of lions, leopards or the like, testimony that he died may not be offered,32 for it is possible that they will not eat him. If he fell into a pit of snakes and scorpions,33 into a furnace,34 or into a boiling caldron filled with wine or oil,35 or his esophagus and windpipe were slit - either in their majority36or in their entirety - testimony may be offered that he died, even if he arose and fled. For [in these situations], he ultimately will die.
Similar laws apply in all situations in which it is impossible that the person will live, but rather will die shortly afterwards. Testimony may be offered that he [died].
Halacha 18
If we see a man hanging37 and a vulture eating from his body, testimony may not be offered that he died. [This applies] even if he was stabbed with a lance, or arrows were shot at him.38
If, however, we see the vulture eating from a place that would cause him to die - e.g., his brain, his heart or his intestines, one may offer testimony that he died.
Halacha 19
[The following laws apply when] one witness testifies, "I saw that he died in a war or in a landslide, or that he drowned in the ocean39 and died," or mentioned other causes that would probably lead to death. If he says, "I buried him," his statements are accepted,40 and she may be granted permission to remarry. If he did not say, "I buried him," she should not be granted permission to remarry. If, however, she remarries, she need not leave [her second husband].41
Halacha 20
Similarly, if one witness42 testifies that a woman's husband drowned in the sea or in a body of water that does not have a defined periphery, he did not emerge [from the water], all traces of him have disappeared,43 and his existence has been forgotten, the woman should not [be granted license to] remarry on this basis, as we have explained.44
If, however, she remarries,45 she need not be forced to leave her second husband. Even if a gentile said in the course of conversation, "So and so drowned at sea," and on this basis [the man's wife] remarried, she need not be forced to leave her second husband. Nevertheless, [in the above instances,] the sage who gave permission for her to remarry should be placed under a ban of ostracism.46
Halacha 21
[The following rules apply when the body of a man who was] slain or died of natural causes is discovered. If his forehead, his nose and his facial features are intact, and his identity can be established based on them,47 testimony concerning his death may be offered.
If, however, any of these identifying factors is missing, even if there are signs [through which he can be identified]48 on his body and on his personal artifacts,49 even if one of those signs is a mole,50 testimony concerning his death should not be offered.
When does [the leniency mentioned in the first clause] apply? When the corpse was seen within three days of his murder or death. After three days have passed, testimony concerning his death should not be offered, because his facial features [may have] become distorted.51
Halacha 22
[The following rules apply when a man] drowned at sea and was cast out onto dry land. Although several days have passed, if his facial features and his nose can be identified,52 testimony may be offered with regard to his [death], for in water the features of a corpse do not become distorted until an extremely long period of time has passed.53
If the corpse lay on dry land for twelve hours54 after being cast out of the sea and the corpse became bloated,55 testimony may not be offered because [his features] have been distorted.56 When we look at the form [of a corpse] in order to identify [a man] to offer testimony with regard to his [death], [it is acceptable if] we look at [the corpse] even by candlelight or by moonlight.57
Halacha 23
[The following rule applies when] we see a person at a distance and he says that he is so and so, the son of so and so, or so and so from a particular place,58 and that he has been bitten by a snake and is dying. Even if we go [to the place where he was standing], find [the corpse and discover] that its features have changed to the extent that it is no longer distinguishable, we may, nevertheless, [grant license for] his wife [to] remarry.59
Halacha 24
[A person's testimony is effective in the following instance.] A person came and said: "A court - or people - told me, when you arrive at this and this place,60 tell them that Yitzchak, the son of Michael, died." When this person came to that place and delivered the message - although he is not aware of the identity [of the deceased] - since [the people at that place] do know his identity, [the deceased's] wife [may be granted] permission [to remarry]. We do not presume that perhaps it was another person named Yitzchak, the son of Michael, who died.61
Halacha 25
When a Jew and a gentile left from our [location] for a different destination, and the gentile came and said in the course of conversation: "The man who left [this city] with me died," [the deceased's] wife [may be granted license to] remarry. [This applies] even when the gentile does not know the identity of the man, provided he says: "I buried him."62
Halacha 26
Similarly, when ten men were taken together while shackled in chains or tied by heavy ropes used to lead camels63 or the like,64 from one place to another,65and a gentile came and said in the course of conversation that all ten men who went out while tied died, and he buried them,66 their wives [may be granted license to] remarry.
Halacha 27
If a Jew says: "A Jewish man died in our company in this and this place. These and these were his facial features. These and these were signs of identification," we do not make a guess and say that it was probably so and so.67 Rather [the person is not considered to have died] until a witness mentions his name and the name of his city.68
Halacha 28
[The following rule applies if] a document was found saying: "So and so, the son of so and so, died," or "So and so, the son of so and so, was killed": If it can be determined that this was written71 by a Jew,72 [the man's] wife [may be given permission to] marry.73
Similarly, when a person has lost the power of speech, and he was tested, as he would be tested with regard to a get,74 and it is proven that he is mentally sound, if he writes that so and so died, we may rely on his writing, and [the deceased's] wife [may be given permission to] marry.75
We do not follow the standard process of interrogation76 with regard to witnesses who testify [concerning the death of] a woman's [husband]. For our Sages did not speak about establishing stringencies regarding such matters. [Indeed, their approach was characterized by] leniency in order to permit a woman without a husband [to remarry].77
Halacha 29
Do not wonder at the fact that our Sages discharged78 the prohibition [against a married woman], which is considered a very severe matter, on the basis of the testimony of a woman, a servant or a maidservant, statements made by a gentile in the course of conversation, a written statement or [testimony] that was not investigated by the ordinary process of interrogation, as we have explained.
[These leniencies were instituted] because the Torah requires only testimony of two witnesses, and all the other details of the laws of witnesses with regard to matters that cannot be verified definitively except via witnesses and their testimony - e.g., that one person killed another, or that one person lent money to another. When, by contrast, the matter may be verified definitively without the testimony of a witness, and the witness cannot justify [his statements] if they are not true - e.g, when one testifies that a person died,79 the Torah did not necessitate [that the requirements of formal testimony be met in these instances]. For it is unlikely that a witness will testify falsely.80
For this reason, our Sages [extended] the leniency with regard to this matter and accepted the testimony of a single witness that is based on the testimony of a maidservant, [testimony] from a written document, and [testimony] that was not investigated by the ordinary process of interrogation. [These leniencies were accepted] so that the daughters of Israel will not be forced to remain unmarried.
Blessed be the Merciful One, who grants assistance.
| FOOTNOTES | |
| 1. |
Note the ruling of the Chelkat Mechokek 17:93, who explains that the Rambam's decision applies only in an instance where the woman has already made false statements in the presence of a court. The fact that a couple constantly quarrel is not considered serious enough to warrant the stringencies mentioned in this halachah.
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| 2. |
And so, the couple were forced to remain married. Chapter 12, Halachah 15 describes a situation when a man disappears "when their relationship is peaceful, and peace prevails in the world at large." All the laws that follow in that chapter deal with such situations. This chapter describes situations where these conditions do not prevail, and hence more stringent laws apply.
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| 3. |
I.e., the stringencies apply even where peace prevails in the world at large, because of the strife that exists between the couple.
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| 4. |
Yevamot 116a records a difference of opinion between the Sages regarding the rationale for this ruling. Rav Chananiah states that the reason is that we suspect that the woman is lying. Rav Simi bar Ashi states that we suspect that in an instance where her husband appears to be dying, the woman will not be careful and will conclude that he died, even though he remained alive.
The Rambam's citation of the first opinion in this halachah represents a reversal of his thinking. For in his Commentary on the Mishnah (Yevamot 15:1), he mentions the latter view.
According to the Rambam's opinion stated here, even if the woman says that she buried her husband, her word is not accepted (Hagahot Maimoniot; Ramah, Even HaEzer 17:48).
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| 5. |
The Maggid Mishneh notes that this issue is left unresolved by Yevamot 116b, and therefore, the Rambam chooses the more stringent view. The Maggid Mishneh questions why the Rambam ignores the rationale given by the Talmud - that in most cases, a woman who is granted permission on the basis of the testimony of one witness is careful and thoroughly investigates the matter before she marries, but in this instance, because of her hatred of her husband, she will not make such an investigation - and offers another rationale that is not mentioned there.
Rav Eliyahu Mizrachi (in a responsum quoted by the Kessef Mishneh) offers a resolution to this matter, explaining that the Rambam accepts the testimony of a single witness in such instances without question, because we assume that a person will not lie in an instance where the truth will shortly be revealed. (See the notes at the conclusion of this chapter.) Nevertheless, since the question is left unresolved by our Sages, and a very severe matter is involved, the Rambam does not desire to offer a leniency that was not accepted by our Sages. Therefore, he offers a different rationale, even though it was not mentioned in the Talmud.
On the basis of this explanation, Rav Eliyahu Mizrachi explains that if a witness comes to the court on his own initiative, the woman is granted license to remarry even when differences existed between her and her husband previously. The Chelkat Mechokek 17:95, however, states that this leniency is not accepted by the latter authorities.
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| 6. |
If, however, the woman says that her husband died near the battlefront, but not in battle, her word is accepted (Ramah, Even HaEzer 17:48).
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| 7. |
There is a slight difficulty with the Rambam's ruling, because the rationale that the Rambam mentioned previously - that she suspects that her husband died, and because of the high likelihood is willing to make such statements even though she has no definite knowledge - seemingly does not apply when the woman says: "I buried him." For if a person is buried, he is definitely dead.
[For this reason, the Rashba - and his opinion is quoted as a minority view by the Shulchan Aruch(Even HaEzer 17:48) - rules that if the woman says that she buried her husband, her word is accepted.]
In the responsum of Rav Eliyahu Mizrachi quoted by the Kessef Mishneh, it is explained that the woman will be afraid to tarry on a battlefield and bury her husband. Nevertheless, since she is certain that he died, she will exaggerate and say that she buried him, although she did not. Alternatively, the Levush states that we suspect that the fear and confusion of wartime is so great that she may have in fact buried a man, but she might have mistaken another man for her husband.
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| 8. |
I.e., although war was raging nearby, her husband was not involved in the war and died at home. Her word is accepted, because we do not suspect that she will intentionally lie. And at home, away from the battlefront, she will know for certain whether or not her husband died.
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| 9. |
On the one hand, if the woman desired to lie, she could have offered a better lie and not mentioned the war at all (miggo). Nevertheless, when a woman says that her husband died in a war, our suspicion is that she erred and thought her husband died, even when he did not. Therefore, at the outset, she should not be granted permission to marry. If, however, she does marry, since there are grounds to believe her statement, we do not force her to leave her second husband.
The Rambam's ruling is quoted by the Shulchan Aruch (Even HaEzer 17:49). The Ramah, however, follows the ruling of Rabbenu Asher, who maintains that if the woman marries, she should be forced to leave her second husband.
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| 10. |
If, however, the woman says that her husband died in bed at those times, her word is accepted. If she says that he died in a landslide or was bitten by a swarming mass of snakes, and she buried him, according to the Rambam her word is not accepted. According to the Rashba, her word is accepted if she says that she buried him [Maggid Mishneh; Ramah (Even HaEzer 17:51)].
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| 11. |
This law applies even if she says that he died on his bed (Ramah, Even HaEzer 17:53). We fear that she left her husband sick, without any source of nurture, and assumed that he died without knowing for certain (Yevamot 114b).
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| 12. |
In the previous instance, we do not fear that she is lying, but rather merely exaggerating and relying on the likelihood that he died. We do not, however, fear that she would exaggerate and say that she buried him if it were not true.
The woman's word is accepted with regard to a famine, while it is not with regard to war, because of the obvious difference between the two instances. In wartime, there is an immediate danger and everyone is worried about saving his own life (Ibid.).
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| 13. |
Rashi (Yevamot 115a, Avodah Zarah 25b) states that the attackers will keep the woman alive in order to rape her. Tosafot (Avodah Zarah 25b) explains that a woman is not considered likely to fight back, and her physical weakness arouses mercy. Therefore, she is left alive.
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| 14. |
Rabbenu Asher rules that the woman's word is not accepted. Rabbenu Nissim, moreover, maintains that that is the proper reading in the Mishneh Torah. Our translation follows the standard printed texts of the Mishneh Torah and the authoritative manuscripts most widely available.
The Shulchan Aruch (Even HaEzer 17:55) states that the woman's word is accepted, while the Ramah quotes Rabbenu Asher's view.
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| 15. |
Chapter 12, Halachah 15.
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| 16. |
On the basis of Hilchot Yibbum 4:31, the Beit Yosef (Even HaEzer 17) and others explain that here the Rambam is talking about a minor who is not intellectually mature. The testimony of a minor who is intellectually mature is accepted (see the following halachah). In the Shulchan Aruch(Even HaEzer 17:13), Rav Yosef Karo quotes the Rambam's wording exactly. The Turei Zahav17:9 and the Beit Shmuel 17:33, however, make the above distinction.
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| 17. |
Yevamot 121b explains that all these details are necessary, because it is possible that the children are play-acting and buried an insect that they called by the person's name. If, however, their statements reflect sufficient details to indicate that the funeral actually took place, they may serve as the basis for license to be granted a woman to remarry.
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| 18. |
This is one of the classic examples of the principle palginin diburo, "we divide his statement." I.e., we accept his word with regard to the fact that so and so died. We discard the portion of his statement in which he said that he himself killed him.
If we accepted that aspect of the statement as well, he would no longer be acceptable as a witness. For his deed would cause him to be disqualified on the basis of Scriptural law. (See alsoHilchot Edut 12:2.)
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| 19. |
Chapter 12, Halachah 16.
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| 20. |
If the gentile is making these statements with the intent that attention be paid to them, there is reason to suspect that perhaps he intends to create legal problems for a Jewish person. If, however, he makes statements casually, in the course of conversation, we do not suspect that a gentile will desire to cause problems for a Jew (Beit Shmuel 17:38).
As reflected in the halachot that follow, we do fear that a gentile may lie, if doing so will enhance his position, and we fear that he will rush to the conclusion that a man died when he is in fact alive.
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| 21. |
If, however, a gentile says: "I killed so and so," without any apparent intent to cast fear upon his listeners, the deceased's wife is allowed to remarry (Shulchan Aruch, Even HaEzer 17:7).
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| 22. |
If, however, other gentiles relate in the course of conversation that a Jew was killed by gentile legal authorities, their word is accepted (Ramah, Even HaEzer 17:14). As indicated by the Ramah, there is a difference of opinion whether it is acceptable if gentile legal authorities report that a person was executed, but do not say that they performed the execution.
If gentile government authorities report that a person has died or been killed (but not executed by a court of law), their statements are accepted by many halachic authorities. A distinction should be made between the government authorities in democratic countries where freedom of speech prevails, and totalitarian governments that act arbitrarily without consideration of the populace.
|
| 23. |
The Chelkat Mechokek 17:29 states that this law applies even in instances where the gentile's original statements were not sufficient to serve as a basis for remarriage.
|
| 24. |
If, however, the gentile was asked direct questions first, and then in the course of conversation said that a man died, his word is not accepted (Ramah, Even HaEzer 17:15).
|
| 25. |
Chapter 12, Halachah 15.
|
| 26. |
I.e., as reflected by the second half of the halachah, this applies if the witness does not know any details of the person's death at all. Since we do not know any details of the situation, we assume that his statements are true. When, however, the situation can be investigated, the court is obligated to do so.
This is the subject of the remainder of the chapter and also the concern of many of the responsa issued by our Sages concerning this issue throughout the generations. For quite often, the evidence of a man's death and the identification of his corpse were only partial, and the Rabbis had to clarify whether the testimony was sufficient to serve as grounds for his wife to remarry.
|
| 27. |
As stated in Halachah 28, the formal process with which witnesses are questioned is not employed with regard to testimony of this nature. Nevertheless, enquiry should be made lest the witness had erred and made his statements on the basis of likelihood and not actual fact.
|
| 28. |
The commentaries explain that according to Scriptural law, the man is considered to be dead. Nevertheless, our Sages enforced stringencies and forbade a woman from remarrying in such an instance. (See Halachah 20.)
|
| 29. |
The Pitchei Teshuvah 17:134 quotes many classical commentaries that maintain (based onYevamot 121a) that this duration of time is considered to be three hours. Nevertheless, the later commentaries are more lenient and consider a far shorter period to be sufficient.
|
| 30. |
The Maggid Mishneh quotes the Rashba as stating that this applies only when the man was tied to a rope or chain when cast into the water, and then a limb was lifted out, or if the limb was lifted up in a net afterwards, and it could definitely be identified as the man's. When quoting this law, theShulchan Aruch (Even HaEzer 17:32) incorporates these concepts.
|
| 31. |
In this instance as well, the Maggid Mishneh quotes the Rashba as stating that even when our Sages stated that a person could not live without a particular limb, they did not intend that he would necessarily die immediately, and it is possible that the person could live for twelve months. Therefore, even when such a limb is discovered, the woman is required to wait twelve months before remarrying. The Shulchan Aruch (ibid.) incorporates these concepts into its restatement of the law.
|
| 32. |
In this instance, however, the Rambam states that the likelihood that the man died is so great that his heirs may take possession of his inheritance (Hilchot Nachalot 7:3).
|
| 33. |
Based on Yevamot 121a, the Kessef Mishneh explains the difference between a lion's lair and a pit of snakes as follows: A lion's lair is usually wide, and so the person will not necessarily provoke the lions. A pit of snakes is small, and the man will step on the snakes, and this will provoke them.Tosafot adds that we do not say that perhaps a miracle occurred to him as occurred to Daniel.
|
| 34. |
The Maggid Mishneh quotes the Rashba as stating that this applies only when the furnace is so deep that he cannot emerge from it. This qualification is quoted by the later authorities (Chelkat Mechokek 17:57; Beit Shmuel 17:92).
|
| 35. |
The Maggid Mishneh quotes the Rashba as stating that the same laws apply with regard to a caldron of water. When quoting this law, the Shulchan Aruch (Even HaEzer 17:30) incorporates these concepts.
|
| 36. |
For once the majority of these organs are slit, we can be certain that the person will die.
|
| 37. |
The Hebrew word צלוב is translated both as crucified (the method of execution often used by the Romans in the Talmudic period) and as hung. We have chosen the latter term to emphasize the rulings of the later halachic authorities. The Bayit Chadash (Even HaEzer 17) rules that if a person is seen hanging, testimony concerning his death may be offered. The Chelkat Mechokek 17:58 and the Beit Shmuel 17:94 dispute this and cite instances in which a person who had been hanged was subsequently rescued.
|
| 38. |
If, however, he was stabbed or shot in a place that would kill him, testimony that he died may be offered (Beit Yosef, Even HaEzer 17; Beit Shmuel 17:94).
|
| 39. |
The Maggid Mishneh explains that this refers to an instance where the person remained there and watched for an amount of time sufficient for a person to die without seeing the person emerge from the water. This is substantiated by the later authorities (Chelkat Mechokek 17:61). If the witness does not observe the sea, watching for the person to emerge for that length of time, more stringent rules apply.
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| 40. |
By saying he buried the deceased, the witness erases any questions of doubt that might exist regarding whether or not the person actually died. Alternatively, because he buried him, he will have seen his features closely and will not mistakenly identify him.
As stated in Halachah 3, the testimony of a woman who says that her husband died at war is not accepted, even if she says that she buried him. The commentaries, however, differentiate between the two instances, explaining that since the woman's husband is involved, she will be more emotionally upset and less objective. Hence, it is more likely that she would mistake the deceased's identity.
Alternatively, she desires to remarry, and thus she will stretch the truth slightly to be granted that license, while an outsider will not take such liberties.
With regard to the concept of burial in relation to a person who drowned, there are three opinions mentioned by the Rabbis:
a) The Kessef Mishneh states that if the witness sees that the person did not emerge after waiting the length of time in which one would ordinarily drown, he did not have to bury the deceased in order to testify. (Kin'at Eliyahu notes that this interpretation makes the following halachah appear slightly redundant.)
b) The Chelkat Mechokek 17:62 states that the intent was that we saw the corpse after it was taken out from the water.
c) The Noda BiY'hudah (Volume I, Even HaEzer, Responsum 28) states that the intent is that the drowned man was actually buried. For there are times when a person is taken out of the sea and presumed dead, and then is revived afterwards.
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| 41. |
Yevamot 115a states that the question in this instance is whether the testimony of one witness is accepted, because the matter will surely be revealed in the near future - in which case the woman would be permitted to remarry - or because we rely on the fact that the woman will carefully investigate the matter before she remarries, and in this instance, since it is highly likely that her husband died, she will rely on the likelihood and not make a thorough investigation. Therefore, she should not be granted permission to remarry. Since the question is left unresolved, the ruling given by the Rambam applies.
In the responsum quoted by the Kessef Mishneh, Rabbi Eliyahu Mizrachi explains that - as reflected by the concluding halachah of this chapter - the Rambam maintains that the testimony of one witness is accepted, because the matter will surely be revealed in the near future. Nevertheless, he still maintains that, at the outset, the woman should not be granted permission to remarry, because in these situations it is possible for a person to think that a man has died, even though he is actually alive.
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| 42. |
The Maggid Mishneh emphasizes that the same ruling is given even if two or more witnesses offer the same testimony. As long as a body of water does not have a defined periphery, these laws apply.
|
| 43. |
This also reinforces the presumption that he died, for if he had remained alive, most likely he would have returned home or divulged his identity in another manner.
|
| 44. |
Halachah 16. Note also the Rambam's comments in Hilchot Nachalot 7:3:
|
| 45. |
The Ramah (Even HaEzer 17:34) states that this applies only when the woman remarried after receiving license from a Rabbinic authority. If she remarried on her own initiative without consulting an authority, she should be forced to leave her second husband.
|
| 46. |
This applies only when the sage issued this ruling knowingly. If, however, he issued the ruling in error, he is not censured in this manner (Chelkat Mechokek 17:64, based on Yevamot 121a).
|
| 47. |
Yevamot 120a quotes Isaiah 3:9: "The recognition of their countenance testifies against them," as support for this concept.
|
| 48. |
The Maggid Mishneh and the Kessef Mishneh differentiate among three types of signs: a) simanim g'ru'im, signs that are not definitive, b) simanim muvhakim, signs that are definitive, c) simanim muvhakim b'yoter, signs that are extremely definitive.
Signs that are not definitive are never effective means of identification. Signs that are definitive are effective with regard to the identification of lost objects and other questions of monetary law, as stated in Hilchot Gezelah Va'Avedah 13:3-5. They are not, as stated in this halachah, effective with regard to the laws of marriage and divorce. (See also Hilchot Nachalot 7:3.) Signs that are extremely definitive - e.g., a get has a hole next to a particular letter, as stated in Chapter 3, Halachah 11 - may be relied upon with regard to the laws of marriage and divorce.
Similarly, if there is an extremely definitive sign on a corpse, it may be used as evidence to identify the body. These distinctions are also reflected in the statement of the law in the Shulchan Aruch(Even HaEzer 17:24).
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| 49. |
With regard to personal artifacts, there is a further problem. Even if there are very distinctive signs on these articles, they cannot serve as a means of identification, because it is possible that they were lost or stolen and taken by another man. See Shulchan Aruch (op. cit.).
|
| 50. |
There are opinions that maintain that if the person can pinpoint exactly the place of the mole, it may be used as a sign of identification (Beit Shmuel 17:71).
|
| 51. |
I.e., even if the witnesses think that they can identify the corpse, their testimony cannot be relied on, because the person's facial features may have been distorted.
|
| 52. |
Yevamot 121a explains that lying in water generally causes the flesh of a corpse to shrink, and the person's features remain distinct.
|
| 53. |
Yevamot, ibid., mentions a corpse being identified after being in the Jordan River for 17 days.
|
| 54. |
Once a corpse that has been lying in the water is brought to dry land, its features will begin to lose their distinctive qualities rapidly.
There are several different versions of this halachah. We have chosen to follow the standard printed text in our translation. The Kessef Mishneh states that the proper version should be "if the corpse lies on dry land for hours" - i.e., it need not be identified immediately, but it cannot wait any significant period. The Shulchan Aruch (Even HaEzer 17:26) states that the body must be identified immediately after it emerges onto dry land. The Beit Shmuel 17:80, however, mentions that an interval of an hour is granted.
|
| 55. |
The Maggid Mishneh notes that the Rambam's statement of this law is conditional, "If the... corpse became bloated," implying that if we see that the corpse has not become bloated, we may identify it. The Rashba, by contrast, states we suspect that the facial features of a corpse will become distorted after a brief amount of time, and does not allow room for leniency.
Even according to this conception, leniency has been granted by the later authorities when a corpse was removed frozen from a river, and it took several hours to thaw.
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| 56. |
In restating this law, there are several points mentioned by the Shulchan Aruch (ibid.): a) the corpse may not have a wound. If the body was wounded, we fear that its features will be distorted; b) even if it is less than three days after the deceased's passing, if his corpse lay in water for a significant period, it must be identified directly after its discovery.
The Ramah adds that extremely distinctive signs may be used as a means of identification even though the body has lain on dry land for a long period.
|
| 57. |
Although these sources of light are not overly bright, our Sages felt that they were sufficient to enable a person to identify a corpse. There is no need to wait until daylight.
|
| 58. |
The Tur (Even HaEzer 17) states that the person must mention both these factors: his father's name and his city. The Beit Shmuel 17:66 states that, although in general one of these means of identification would have been sufficient, both are necessary because the person's facial features have changed. The Chelkat Mechokek 17:40, however, states that when it is obvious that the person knows the place from which the person came, the ruling of the Rambam and the Shulchan Aruch (Even HaEzer 17:23) may be followed, and only one factor need be mentioned. This is also borne out by the following halachah and its source in Yevamot 115b.
|
| 59. |
I.e., we do not assume that the person was lying, but instead suppose that the poison caused his features to change (Meiri).
Yevamot 122a, the source for this halachah, mentions that perhaps the statements were made by a demon. The Rambam, however, does not mention this possibility, in keeping with his conception (see The Guide for the Perplexed, Vol. III, Chapter 46), that demons are not a relevant halachic phenomenon.
|
| 60. |
I.e., he was informing the Rabbinical court of that city that one of the Jewish inhabitants had died (Kessef Mishneh).
|
| 61. |
The Ra'avad and the Maggid Mishneh mention that this principle applies only when we do not know of another person in the city with that name, or we know that this other person is still alive. The Shulchan Aruch (Even HaEzer 17:18) incorporates these additions into its statement of this law.
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| 62. |
The Maggid Mishneh explains that the Rambam's ruling is that when a gentile knows the name of a Jew, it is unnecessary for him to say that he buried him, when relating that he died. If, however, the gentile did not know the identity of the Jew, it is necessary for him to say that he buried him.
The Tur (Even HaEzer 17) and other authorities do not agree with the Rambam with regard to this point and maintain that the gentile's statements are accepted even when he does not say that he buried the Jew. The Shulchan Aruch (Even HaEzer 17:17) mentions both opinions, but appears to favor the latter view.
|
| 63. |
Our translation is based on the gloss of Rav Kapach, who cites a similar interpretation mentioned by the Razeh.
|
| 64. |
From the Rambam's words, it appears that the men must be tied together. Otherwise, we suspect that one of them left and was replaced by another. In his commentary on the source for this law (Yevamot 122a), Rashi does not share this conception and maintains that the number of men itself is sufficient to serve as identification.
|
| 65. |
The Noda BiY'hudah (Even HaEzer, Volume I, Responsum 36) notes that the Rambam requires that a) a specific number of men were mentioned, b) that their starting point and destination were mentioned, and c) that they were chained together.
The Noda BiY'hudah questions these requirements, because the standard text of Yevamot 122a (the Rambam's source) mentions two stories: one of men traveling in chains and one of sixty men traveling to Betar. The Rambam appears to have fused the two stories together, adopting the requirements mentioned by both and thus being more stringent than his source.
The Noda BiY'hudah reconciles this difficulty by referring to the statement of these incidents in Rabbenu Yitzchak Alfasi's Halachot, which follows a different version from our text of Yevamot. Rabbenu Yitzchak Alfasi mentions "two men traveling in chains to Antioch." Since the Rambam was a student of one of the disciples of Rabbenu Yitzchak Alfasi, it is likely that the Rambam also had the same version of this passage.
|
| 66. |
Here too, the Rambam is referring to an instance in which the gentile did not know the identity of the people who died. (See the notes on the previous halachah.)
|
| 67. |
This applies even if the person is missing, and there are no traces of him left.
|
| 68. |
According to the Rambam and the Shulchan Aruch, alternatively, a person's name and his father's name.
|
| 69. |
Our wording is based on the gloss of the Ramah (Even HaEzer 17:19), who states that this law applies even if the report is given by a gentile in the course of conversation.
|
| 70. |
In this instance as well, the name of the deceased is not mentioned.
|
| 71. |
The Maggid Mishnehates that the note must also be signed, andwe must see that the signature was written by a Jew. The signature need not, however, be verified. (See Shulchan Aruch, Even HaEzer 17:11 and commentaries.)
|
| 72. |
Regardless of the language in which the note was written, if it was written by a Jew, it is acceptable. If, however, it was written by a gentile, it is not acceptable even if it is written in Hebrew. For a gentile's statements are acceptable only when made in the course of conversation (Maggid Mishneh).
In his Bedek HaBayit (Even HaEzer 17), Rav Yosef Karo asks why a statement written by a gentile in the course of conversation is not effective. And in his Shulchan Aruch (loc. cit.), he rules that it is.
|
| 73. |
This is a leniency accepted in order to allow a woman to remarry. Generally, testimony must be given verbally and not in writing. (See Hilchot Edut 3:4.)
|
| 74. |
See Chapter 2, Halachah 16.
|
| 75. |
See Hilchot Edut 9:11, which explains that such testimony is ordinarily not accepted by a Rabbinic court. An exception is made in this instance in order to allow a woman to remarry.
|
| 76. |
Which includes questions defining the exact time and place of the event. (See Hilchot Edut 1:4.)
|
| 77. |
Moreover, even if slight contradictions arise regarding minor points of the testimony of two witnesses, the testimony is nevertheless accepted (Shulchan Aruch, Even HaEzer 17:21).
In one of his responsa (quoted by the Ramah, op. cit.), the Rambam writes: "Whoever is stringent and interrogates witnesses exactingly is not conducting himself properly, and his approach does not find favor in the eyes of our Sages." The Ramah, however, continues that if testimony appears contrived to the court, they must thoroughly investigate the matter.
|
| 78. |
I.e., these are leniencies that our Sages instituted. The acceptance of the testimony of one witness, by contrast, is a leniency implied by Scriptural law.
This follows the interpretation of the Rambam's statements here by the Noda BiY'hudah (Even HaEzer, Volume I, Responsa 27 and 33). There is, however, an apparent contradiction based on the Rambam's statements in Hilchot Edut 5:2.
|
| 79. |
I.e., if the man presumed dead returns, it will be obvious that the witness lied.
|
| 80. |
See similar statements in Hilchot Kiddush HaChodesh 3:14 and Hilchot Yibbum VaChalitzah 4:31.
The Ra'avad and others note that our Sages (Yevamot 93b, 115a) mention two rationales why a woman should be permitted to remarry, the one cited by the Rambam and also because of the severe consequences that she will bring upon herself if her husband is found alive (see Chapter 10, Halachah 7), a woman will investigate the matter thoroughly and will not remarry unless she is certain that he has actually died. The Talmud appears to imply that these rationales are contradictory and cites cases in which one would apply, but not the other.
The Noda BiY'hudah (loc. cit.) explains that the Rambam sees the two rationales as complementary. Ordinarily, when a matter can easily be verified - e.g., a question of whether or not chalitzah was performed - the statement of one witness is acceptable without question. In this instance, however, it is not always easy to verify whether in fact the man died, and therefore the rationale that the woman must investigate the matter is necessary. For this reason, in all the instances where the Talmud implies that one rationale would conflict with another, the Rambam reaches a conclusion that takes both rationales into consideration.
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Hilchot Nizkei Mamon - Chapter Six
1. What is meant by the term mu'ad?1 [An animal regarding which] testimony2was given on three [different] days. If, however, an animal gored [other animals] on one day, or it bit, lay upon, kicked or butted [other animals many] - even one hundred - times in one day, it should not be considered to be mu'ad.3
If three pairs of witnesses gave testimony [concerning an animal]4 on one day, there is an [unresolved] doubt whether it is classified as mu'ad or not.
2. The warning administered to an owner [for an animal] must be administered in the owner's presence, as [implied by Exodus 21:29]: "And the owners shall be warned." The warning must be administered in a court.5
3. When an ox belonging to a deaf mute, a mentally incompetent individual, a minor6 or a person who is overseas gores, [the owner] is not liable. The court should, however, appoint a guardian for the ox and administer the warning to the guardian.
4. [The following rules apply when this ox] causes damage after the warning was administered to the guardian:7 If the ox is still classified as a tam, an ordinary animal, half the damages must be paid from the body [of the ox].8 If a warning was administered on three [different] days, and afterwards [the ox] causes damage, the guardian must pay for the damage from the choicest properties he owns.9 When the orphans attain majority, they must enter into litigation with the guardian and repay him.
5. When oxen are used for sport,10 and they are trained to gore each other, they are not considered to be mu'adim [to gore] each other. [Moreover,] even if they kill a human, they should not be executed, for [Exodus 21:28] states: "When an ox gores...," [implying that it does so on its own initiative,] not that it was prompted to gore.
6. When an ox was sold or given away as a present after its owners had been warned, its status reverts back to that of a tam. With the change in ownership, its status changes.
If, however, an ox was borrowed or entrusted to a watchman, its status remains unchanged. Similarly, if a warning regarding an ox was given to a guardian, and then the owner who was a deaf mute regained his faculties, or the owner who was mentally incompetent regained competence, or the owner who was a minor attains majority, the status of the ox remains unchanged,11 for it remains in the domain of the [same] owner.
7. When an animal was classified as mu'ad, and then it changes its conduct, its status changes and it is considered to be a tam.
What is implied? If an ox was classified as mu'ad with regard to goring and it ceased goring, it is considered to be a tam with regard to goring, even though it still butts.
When is it considered to have ceased [goring]? When children play12 with it and it does not gore them. Similarly with regard to other tendencies regarding which warnings were given, [the status of the animal remains unchanged] until [children] play with it, and it does not do [what it was wont to do previously].
8. When an ox has been classified as mu'ad with regard to [other oxen], it is not considered to be mu'ad with regard to other types of animals. An ox that has been classified as mu'ad with regard to humans is not considered to be mu'adwith regard to animals.13 If it has been classified as mu'ad with regard to young animals, it is not considered to be mu'ad with regard to older animals.
Therefore, if it caused damage of the type regarding which the warning was given, the owner is liable for the full amount of the damages. If it caused damages of another type, regarding which a warning was not given, [the owners] must pay [only] half the damages.
If it has been classified as mu'ad with regard to Sabbaths, it is not considered to be mu'ad with regard to weekdays.14 If it causes damage on the Sabbath, the owner is liable for the full amount of the damages. During the week, [the owners] must pay [only] half the damages.
When is the warning rescinded? When children will play with it on the day concerning which the warning was given, and it does not harm them in the way it is known to cause harm.
9. If [an ox] gored another ox on one day, a donkey on the following day, and a camel on the day afterwards, it is classified as mu'ad for all [these three] types [of animals].15
[A warning should also be administered to an owner in the following situation. His ox] saw another ox on one day and gored it. On the next day, it saw another ox but did not gore it. On the third day, it saw another ox and gored it. On the fourth day, it saw another ox but did not gore it. On the fifth day, it saw another ox and gored it, and on the sixth day, it saw another ox but did not gore it. [In these circumstances, the ox] becomes classified as mu'ad to gore oxen on alternate days.16 Similar laws apply in other analogous situations.
10. [Similarly, a warning should also be administered to an owner in the following situation. His ox] saw another ox on one day and gored it. On the next day, it saw a donkey, but did not gore it. On the third day, it saw a horse and gored it. On the fourth day, it saw a camel but did not gore it. On the fifth day, it saw a mule and gored it, and on the sixth day, it saw a wild ass but did not gore it. [In these circumstances, the ox] becomes classified as mu'ad to gore all [these three] types [of animals] on alternate days.
If it gores one of these types of animals that it had gored on alternate days on a day on which it is mu'ad, [the owner must pay the full damages, as is required for an ox that is] mu'ad.
11. [When an ox] gores [an animal] on the fifteenth of one month, on the sixteenth of the following month, and on the seventeenth of the third month, it is not classified as mu'ad until it adds a day a third time, in the fourth month.17
If an ox hears a shofar blast and gores on three [successive] occasions, it is considered mu'ad [to gore after hearing] shofar blasts.18 Similar laws apply in other analogous situations.
12. [There is an unresolved doubt in the following situations.] An ox gored three other oxen on three successive days. On the fourth day it gored a donkey, and on the fifth day it gored a camel. Or at first it gored a donkey and a camel, and then it gored three oxen one after another. There is a doubt if it is classified asmu'ad only for oxen or for all three types of animals.
Similarly, if an ox gores on three successive Sabbaths and then on the Sunday and the Monday [following the third Sabbath], or it gored on Thursday, on Friday and then on three successive Sabbaths, there is a doubt whether it is classified as mu'ad only for Sabbaths or for a block of three days, two of which are ordinary weekdays.19
13. With regard to these unresolved questions and the like, [the owner of the ox] that caused the damage is required to pay for only half the damages. If the person whose property was damaged seizes property belonging to the other person equivalent to the full amount of the damages, it is not expropriated from him.20
FOOTNOTES 1. Mu'ad literally means forewarned - i.e., the animal is prone to perform such acts, and the owner should be forewarned. 2. From two acceptable witnesses. 3. For it is possible that the animal was disturbed by certain factors on that day, and its conduct is not indicative of its ordinary pattern. 4. I.e., that it gored three other animals on three days (Ra'avad, Maggid Mishneh). 5. Hilchot Sanhedrin 5:12 states that this refers to a court of three judges who received semichah. For this reason, ever since this semichah was nullified, animals were no longer placed into the category of mu'ad. Accordingly, these laws do not apply in the present age. 6. All the first three people are considered to be mentally incompetent and are not held responsible for their conduct. 7. I.e., the Rambam explains that the ox gored another ox, a guardian was appointed, and then it gored again. (See Or Sameach.) 8. Rashi (Bava Kama 39a), Rabbenu Asher and the Ra'avad differ and maintain that a guardian is not appointed unless the ox gores three times. Otherwise, the owners are not held liable. 9. The Tur (Choshen Mishpat 406) states that the payment is made from the property of the orphans, and not from that of the guardian. 10. Bava Kama 4:3 uses the expression A bull from a stadium. In his Commentary on the Mishnah, the Rambam explains This one sends out his bull and the other sends out his bull. After having trained their animals to gore, they call to them to attack the other animal to see who will be victorious. This is done with the owner's consent. This is the habit of many foolish people. 11. See Halachah 3. Although previously the guardian was responsible for watching the ox, the change in responsibility is not a change in ownership, and the ox's status is not changed. 12. Our translation is based on the Rambam's Commentary on the Mishnah (Bava Kama 2:4). In neither source does the Rambam mention how often the children must play with the ox. With this ruling, the Rambam rejects an opinion stated in Bava Kama 23b, which states that if three days pass when the ox sees other oxen and does not gore them, the warning is rescinded. 13. Conversely, an ox that has been classified as mu'ad with regard to animals is not considered to be mu'ad with regard to humans. 14. Rashi (Bava Kama 37a) explains that on the Sabbath, an ox is not required to work. Hence, it may not feel the yoke of its master as thoroughly and may therefore cause damage. Others cite the Jerusalem Talmud which explains that since people dress differently on the Sabbath, the ox will not be familiar with them, and may gore them because it views them as strangers. This does not apply during the week. 15. Our translation is based on the gloss of the Maggid Mishneh, which reflects the Rambam's wording in Halachot 10 and 12. The Rambam is explaining that to be classified as mu'ad for a type of animal, an ox does not have to gore that type of animal three times. The Ra'avad differs and explains that the ox is considered to be mu'ad for all types of animals. 16. Thus, if it gores an ox on an odd day, its owner will be liable for the full extent of the damages, and if it gores on an even day, he will be liable for only half the damages. 17. A parallel to this law is found with regard to fixing the pattern of the onset of menstruation. See Hilchot Issurei Bi'ah 8:6. 18. I.e., it appears that the shofar blasts prompt the ox to gore. 19. The Ra'avad questions the Rambam's ruling, asking why the animal would be considered to be mu'ad for only this block of three days. 20. See Chapter 1, Halachah 11.
1. What is meant by the term mu'ad?1 [An animal regarding which] testimony2was given on three [different] days. If, however, an animal gored [other animals] on one day, or it bit, lay upon, kicked or butted [other animals many] - even one hundred - times in one day, it should not be considered to be mu'ad.3
If three pairs of witnesses gave testimony [concerning an animal]4 on one day, there is an [unresolved] doubt whether it is classified as mu'ad or not.
2. The warning administered to an owner [for an animal] must be administered in the owner's presence, as [implied by Exodus 21:29]: "And the owners shall be warned." The warning must be administered in a court.5
3. When an ox belonging to a deaf mute, a mentally incompetent individual, a minor6 or a person who is overseas gores, [the owner] is not liable. The court should, however, appoint a guardian for the ox and administer the warning to the guardian.
4. [The following rules apply when this ox] causes damage after the warning was administered to the guardian:7 If the ox is still classified as a tam, an ordinary animal, half the damages must be paid from the body [of the ox].8 If a warning was administered on three [different] days, and afterwards [the ox] causes damage, the guardian must pay for the damage from the choicest properties he owns.9 When the orphans attain majority, they must enter into litigation with the guardian and repay him.
5. When oxen are used for sport,10 and they are trained to gore each other, they are not considered to be mu'adim [to gore] each other. [Moreover,] even if they kill a human, they should not be executed, for [Exodus 21:28] states: "When an ox gores...," [implying that it does so on its own initiative,] not that it was prompted to gore.
6. When an ox was sold or given away as a present after its owners had been warned, its status reverts back to that of a tam. With the change in ownership, its status changes.
If, however, an ox was borrowed or entrusted to a watchman, its status remains unchanged. Similarly, if a warning regarding an ox was given to a guardian, and then the owner who was a deaf mute regained his faculties, or the owner who was mentally incompetent regained competence, or the owner who was a minor attains majority, the status of the ox remains unchanged,11 for it remains in the domain of the [same] owner.
7. When an animal was classified as mu'ad, and then it changes its conduct, its status changes and it is considered to be a tam.
What is implied? If an ox was classified as mu'ad with regard to goring and it ceased goring, it is considered to be a tam with regard to goring, even though it still butts.
When is it considered to have ceased [goring]? When children play12 with it and it does not gore them. Similarly with regard to other tendencies regarding which warnings were given, [the status of the animal remains unchanged] until [children] play with it, and it does not do [what it was wont to do previously].
8. When an ox has been classified as mu'ad with regard to [other oxen], it is not considered to be mu'ad with regard to other types of animals. An ox that has been classified as mu'ad with regard to humans is not considered to be mu'adwith regard to animals.13 If it has been classified as mu'ad with regard to young animals, it is not considered to be mu'ad with regard to older animals.
Therefore, if it caused damage of the type regarding which the warning was given, the owner is liable for the full amount of the damages. If it caused damages of another type, regarding which a warning was not given, [the owners] must pay [only] half the damages.
If it has been classified as mu'ad with regard to Sabbaths, it is not considered to be mu'ad with regard to weekdays.14 If it causes damage on the Sabbath, the owner is liable for the full amount of the damages. During the week, [the owners] must pay [only] half the damages.
When is the warning rescinded? When children will play with it on the day concerning which the warning was given, and it does not harm them in the way it is known to cause harm.
9. If [an ox] gored another ox on one day, a donkey on the following day, and a camel on the day afterwards, it is classified as mu'ad for all [these three] types [of animals].15
[A warning should also be administered to an owner in the following situation. His ox] saw another ox on one day and gored it. On the next day, it saw another ox but did not gore it. On the third day, it saw another ox and gored it. On the fourth day, it saw another ox but did not gore it. On the fifth day, it saw another ox and gored it, and on the sixth day, it saw another ox but did not gore it. [In these circumstances, the ox] becomes classified as mu'ad to gore oxen on alternate days.16 Similar laws apply in other analogous situations.
10. [Similarly, a warning should also be administered to an owner in the following situation. His ox] saw another ox on one day and gored it. On the next day, it saw a donkey, but did not gore it. On the third day, it saw a horse and gored it. On the fourth day, it saw a camel but did not gore it. On the fifth day, it saw a mule and gored it, and on the sixth day, it saw a wild ass but did not gore it. [In these circumstances, the ox] becomes classified as mu'ad to gore all [these three] types [of animals] on alternate days.
If it gores one of these types of animals that it had gored on alternate days on a day on which it is mu'ad, [the owner must pay the full damages, as is required for an ox that is] mu'ad.
11. [When an ox] gores [an animal] on the fifteenth of one month, on the sixteenth of the following month, and on the seventeenth of the third month, it is not classified as mu'ad until it adds a day a third time, in the fourth month.17
If an ox hears a shofar blast and gores on three [successive] occasions, it is considered mu'ad [to gore after hearing] shofar blasts.18 Similar laws apply in other analogous situations.
12. [There is an unresolved doubt in the following situations.] An ox gored three other oxen on three successive days. On the fourth day it gored a donkey, and on the fifth day it gored a camel. Or at first it gored a donkey and a camel, and then it gored three oxen one after another. There is a doubt if it is classified asmu'ad only for oxen or for all three types of animals.
Similarly, if an ox gores on three successive Sabbaths and then on the Sunday and the Monday [following the third Sabbath], or it gored on Thursday, on Friday and then on three successive Sabbaths, there is a doubt whether it is classified as mu'ad only for Sabbaths or for a block of three days, two of which are ordinary weekdays.19
13. With regard to these unresolved questions and the like, [the owner of the ox] that caused the damage is required to pay for only half the damages. If the person whose property was damaged seizes property belonging to the other person equivalent to the full amount of the damages, it is not expropriated from him.20
| FOOTNOTES | |
| 1. | Mu'ad literally means forewarned - i.e., the animal is prone to perform such acts, and the owner should be forewarned. |
| 2. | From two acceptable witnesses. |
| 3. | For it is possible that the animal was disturbed by certain factors on that day, and its conduct is not indicative of its ordinary pattern. |
| 4. | I.e., that it gored three other animals on three days (Ra'avad, Maggid Mishneh). |
| 5. | Hilchot Sanhedrin 5:12 states that this refers to a court of three judges who received semichah. For this reason, ever since this semichah was nullified, animals were no longer placed into the category of mu'ad. Accordingly, these laws do not apply in the present age. |
| 6. | All the first three people are considered to be mentally incompetent and are not held responsible for their conduct. |
| 7. | I.e., the Rambam explains that the ox gored another ox, a guardian was appointed, and then it gored again. (See Or Sameach.) |
| 8. | Rashi (Bava Kama 39a), Rabbenu Asher and the Ra'avad differ and maintain that a guardian is not appointed unless the ox gores three times. Otherwise, the owners are not held liable. |
| 9. | The Tur (Choshen Mishpat 406) states that the payment is made from the property of the orphans, and not from that of the guardian. |
| 10. | Bava Kama 4:3 uses the expression A bull from a stadium. In his Commentary on the Mishnah, the Rambam explains This one sends out his bull and the other sends out his bull. After having trained their animals to gore, they call to them to attack the other animal to see who will be victorious. This is done with the owner's consent. This is the habit of many foolish people. |
| 11. | See Halachah 3. Although previously the guardian was responsible for watching the ox, the change in responsibility is not a change in ownership, and the ox's status is not changed. |
| 12. | Our translation is based on the Rambam's Commentary on the Mishnah (Bava Kama 2:4). In neither source does the Rambam mention how often the children must play with the ox. With this ruling, the Rambam rejects an opinion stated in Bava Kama 23b, which states that if three days pass when the ox sees other oxen and does not gore them, the warning is rescinded. |
| 13. | Conversely, an ox that has been classified as mu'ad with regard to animals is not considered to be mu'ad with regard to humans. |
| 14. | Rashi (Bava Kama 37a) explains that on the Sabbath, an ox is not required to work. Hence, it may not feel the yoke of its master as thoroughly and may therefore cause damage. Others cite the Jerusalem Talmud which explains that since people dress differently on the Sabbath, the ox will not be familiar with them, and may gore them because it views them as strangers. This does not apply during the week. |
| 15. | Our translation is based on the gloss of the Maggid Mishneh, which reflects the Rambam's wording in Halachot 10 and 12. The Rambam is explaining that to be classified as mu'ad for a type of animal, an ox does not have to gore that type of animal three times. The Ra'avad differs and explains that the ox is considered to be mu'ad for all types of animals. |
| 16. | Thus, if it gores an ox on an odd day, its owner will be liable for the full extent of the damages, and if it gores on an even day, he will be liable for only half the damages. |
| 17. | A parallel to this law is found with regard to fixing the pattern of the onset of menstruation. See Hilchot Issurei Bi'ah 8:6. |
| 18. | I.e., it appears that the shofar blasts prompt the ox to gore. |
| 19. | The Ra'avad questions the Rambam's ruling, asking why the animal would be considered to be mu'ad for only this block of three days. |
| 20. | See Chapter 1, Halachah 11. |
Hilchot Nizkei Mamon - Chapter Seven
1. [The following rules apply when] an ox breaks loose and causes damage after its owner had tied it with a rope and locked it [in a corral] in an acceptable manner.1 If it is a tam, he is required to pay only half the damages.
If it is mu'ad, he is not liable at all,2 as [implied by Exodus 21:29]: "[If the owners were warned,] and they did not guard him." [One can infer that] if they did guard, they are not liable. [And in the above instance, the ox] was guarded.3
Similarly, if an ox caused damage through an activity for which he is mu'ad at the outset - e.g., it ate a type of food that it usually eats or it broke objects by treading on them - [the owner] is not liable [in the above instance].
2. If the ox has been classified as mu'ad with regard to its right horn, but it is notmu'ad with regard to its left horn, and it got loose after it had been guarded in an acceptable manner, [the owner is required to] pay half the damages.4 [This applies] regardless of whether it gored with its right horn or its left horn.
3. [The following rules apply when] an animal injures a human being, whether intentionally or unintentionally. If the animal is a tam, half the damages must be paid from the body of the animal. If it is mu'ad, [the owner] must pay the entire amount of the damages.5
He is, however, not liable for compensation for unemployment, embarrassment, pain and medical expenses. For the Torah required redress for these matters only when one person injured a colleague.6 When, by contrast, it is an animal which caused the injury, it is as if [the animal] damaged the person's property, and [the owner] is liable for only half of the damages.
For this reason, if a person's ox causes [another individual] embarrassment, he is not liable. If, however, he causes that embarrassment himself, he is liable, as will be explained.7
If a person's ox injures his father or mother, or it sets fire to a person's grain heap on the Sabbath, [the owner] is liable, although if the person performed these same actions himself, he would not be liable.8
4. [The following rules apply when] a person brings his ox into a courtyard belonging to another person without his permission. If the [uninvited ox] was gored by an ox belonging to the owner or bitten by the owner's dog, the owner is not liable.
If the [uninvited ox] gored an ox belonging to the owner [of the courtyard], [the owner of the uninvited ox is liable.] If [his ox] is tam, [its owner] must pay half the damages. If it is mu'ad, he must pay the entire damages, as if it had gored [the other ox] in the public domain.9
5. [In the above situation, the following rules apply if the uninvited ox] falls into a cistern in this courtyard and spoils its water. If it spoiled the water immediately upon falling within,10 [the owner of the ox] is liable for the loss caused by the ruining of the water. If [the water] was not spoiled until afterwards,11 [the owner] is not liable. [The rationale is that] the ox is considered to be an obstruction in the cistern, and the water is considered to be a utensil. And one is never liable for damage to utensils caused by an obstruction.12
If [the owner of the ox received] permission to bring in his ox, the owner of the ox is not liable for any damage the ox caused.13 If the owner of the courtyard accepted responsibility for the ox,14 he is liable for the damages it suffers from falling into the cistern.
6. [The following rules also apply when] a person brings his ox into a courtyard belonging to another person without his permission. If the [uninvited ox] injures the owner of the courtyard, the owner of the courtyard suffers injury [because of the ox], or [the ox] digs pits or trenches, or burrows in the courtyard, the owner of the ox is liable for the damage to the courtyard [or to the owner]. [If another person] is injured because of these pits,15 the owner of the courtyard is liable, for it is his responsibility to fill them up.
7. [The following rules apply if] the owner of the courtyard damaged the ox: If he caused the damage unknowingly, he is not liable. For he can tell [the owner of the ox], "Why did you bring [your ox] in without permission. I was not aware of it until I [damaged it] unknowingly."16 If he caused the damage knowingly, he is liable for the full extent of the damage. He has the right to take the [intruding animal] out of his property; he does not have the right to damage it.
8. We evaluate the amount of damages caused.
What is implied? If either a person or his ox broke a utensil belonging to a colleague, we do not tell the person who caused the damage, "Take the broken utensil and pay its worth to its owner."17 Instead, we evaluate the loss caused to the utensil. This amount is paid by the person who caused the damage. [If the damage was caused by his ox, and the ox] was mu'ad, he is liable for the full amount of the damages. If it is tam, he is liable for half the damages.
[This is implied by Exodus 21:36]: "And the carcass will be his" - i.e., it belongs to the one whose property was damaged. If the carcass loses value, the person whose property was damaged suffers the loss. If its value rises, the increase is divided between the person who caused the damage and the person whose property was damaged.
9. What is implied? When an ox that is worth 200 [zuz] is gored and dies - its carcass was worth 100 [zuz] at the time of its death,18 but at the time of the trial, it decreased in value and was worth only 80. [In such an instance,] the person whose [ox] caused the damage is required to pay only 100 [zuz],19 if [the ox] was mu'ad. If it was a tam, the owner is required to pay only 50 [zuz] from the body of the ox.
10. If the value of the carcass increased, and it is worth 120 [zuz] at the time of the trial, the one who caused the damage must pay 9020 if the ox was mu'ad, and 45 from the body of the ox if it was a tam. [This is implied by Exodus 21:35]: "And they shall also divide the dead [ox]" - i.e., they shall divide the profit from the dead ox.21
11. [The amount that the person whose ox caused the damage must pay is subject to change in some, but not in all, circumstances. To illustrate:] An ox that was worth 200 [zuz] gored another ox worth 200 [zuz], causing it to depreciate 50 [zuz]. At the time of the trial, its value increased and it was worth 400 zuz. If, however, it had not been gored, it would have been worth 800 [zuz]. Whether its value increased because it was fattened or because of market fluctuations,22 the damages are evaluated according to the loss at the time the damage took place.23
If the ox became weak because of the injury it received and the damages amounted to 100 zuz at the time of the trial, the damages are evaluated according to the loss at the time of the trial.24
12. [The following rules apply if] the value of the ox that caused the damage increased at the time of the trial.25 If its value increased because the owner fattened it, only its value at the time it caused the damage is considered to be on lien for payment.26 If its value increased because of market fluctuations, half of the damages may be collected from its value at the time of the trial.27
13. It is the responsibility of the person who caused the damage to make the effort to bring the carcass of the ox that was damaged to the person [whose ox] was damaged.
What is implied? An ox fell into a cistern and died. [The owner of the cistern] must raise the carcass [of the ox]28 from the cistern and give it to its owner. Then we evaluate the extent of the loss.
[This is derived from Exodus 21:34]: "He shall give monetary recompense to the owners, and the carcass will be [the owners']." This teaches that he is obligated to return the carcass and the decrease in the value of the ox [from the time]29when it was alive, to its owner. If [the ox that caused the damage was a tam], [its owner is required to pay only] half the damages, as explained above.30
FOOTNOTES 1. I.e., with a gate that can withstand an ordinary wind. According to the Shulchan Aruch (Choshen Mishpat 396:1), this halachah is speaking about guarding the animal in an inferior manner as explained in the notes to Chapter 4, Halachah 4. If the animal is guarded in an excellent manner, there is no liability. 2. According to the Rambam, the owner is not liable for even half the damages. Rabbenu Asher and others differ. According to their view, since he did guard the ox to some degree, he is not liable for the full damages. He is, however, liable for half the damages, for there is no reason why the laws governing him should be more lenient than those governing an ordinary ox. See Sefer Me'irat Einayim 396:1. 3. Note the Rambam's Commentary on the Mishnah (Bava Kama, conclusion of Chapter 4), which states that since this ox frequently gores, it is a mitzvah to slaughter it. 4. Since the ox is considered to be a tam with regard to one element of goring, the owner is never freed from the obligation to pay the half damages that the owner of an ordinary ox would pay. 5. Although these principles are stated in the Torah explicitly with regard only to damage done to another animal, Bava Kama 33a explains how an equation to human injury is derived. 6. For Leviticus 24:19, the source for the laws applying to human injury, states: When a man will cause a blemish to a colleague.... Implied is that these laws apply only when the injury is caused by another man. 7. Hilchot Chovel UMazik 1:1,9. 8. A human being is not liable in these instances. The rationale is that he is liable for capital punishment for injuring his parents or desecrating the Sabbath. Whenever a person incurs both liability for capital punishment and monetary restitution with the performance of a single deed, he is freed of responsibility for the monetary claim. See Hilchot Chovel UMazik 4:5,7. 9. The words as if it had gored in the public domain refer to the fact that the owner of an ox that is tam pays for only half the damages. One might draw a comparison to the damage caused by eating or treading, in which instance the owner of the ox is not held liable for damage caused in the public domain, but he is liable for the entire amount of damages caused in the domain of the owner of the produce. To counter this hypothesis, the Rambam emphasizes that with regard to goring, one is liable as in the public domain, but not more. 10. E.g., the ox was covered with filth at the time it fell into the cistern. 11. E.g., the ox spoiled it with its wastes. 12. See Chapter 13, Halachah 1. 13. The Ra'avad questions the Rambam's ruling, maintaining that, as stated in Chapter 1, Halachot 8-9, when an ox causes damage in a courtyard belonging jointly to its owner and another person, the owner of the ox is liable for the damage it causes. Why then, asks the Ra'avad, is the owner of the ox not liable in this situation? The Shulchan Aruch (Choshen Mishpat 398:5), however, quotes the Rambam's ruling. 14. As mentioned in the notes on Chapter 3, Halachot 13-15, the Tur differs with Rambam and maintains that granting the owner of the ox permission to bring his ox into the courtyard is equivalent to accepting responsibility for any damage to it caused by the owner or his property. With regard to damages caused by others, however, the owner of the courtyard is not liable unless he accepts responsibility. The Shulchan Aruch (loc. cit.) quotes the Rambam's wording, while the Ramah follows the perspective of the Tur. 15. The Maggid Mishneh and Sefer Me'irat Einayim 398:2 state that the owner of the courtyard is generally not liable for the injury another person suffered because of these pits, since he can always claim: Who gave you permission to enter my property? Only when the owner gives up ownership of his property or gives others the right to enter is he liable. 16. This phrase has attracted the attention of the commentaries, for it implies that if the owner of the courtyard knew that the animal had entered his property, he would be liable even when he caused the damage accidentally. From Hilchot Chovel UMazik 1:16, 6:3, however, it appears that he would not be liable in such an instance. See Migdal Oz, Lechem Mishneh. 17. Note the contrast to Hilchot Geneivah 1:15. See Sefer Me'irat Einayim 403:1. 18. The Tur maintains that the time that is significant is not the time of the animal's death, but the time when its owner is notified regarding its death. Until that time, the one who caused the damage is responsible for the loss. The Ramah (Choshen Mishpat 403:2) mentions this view. 19. And not 120. 20. I.e., the 100 zuz that the owner of the ox lost, minus 10 zuz, which is the share of the profit given to the person who caused the damage. 21. The Tur and the Ramah (Choshen Mishpat 403:2) emphasize that although the person who caused the damage is given a share in the value of the dead ox, this applies only with regard to the loss. If the price of meat rises to the extent that the meat of the ox is worth more than the ox was worth when it was alive, the one who caused the damages is not given a share of the profits. 22. I.e., the price of cattle increased. 23. I.e., 50 zuz if the ox was mu'ad. With regard to the larger sum, the matter is considered one of grama, an indirect cause of damage. Therefore, the owner of the ox is not liable (Sefer Me'irat Einayim 404:2). 24. Tosafot, Bava Kama 10b draws a distinction between this instance and Halachah 8, which states that the increased loss to the carcass is suffered by its owner. The rationale for this distinction is that once the ox died, its owner should have sold it immediately. In this instance, since the ox was still alive, its owner thought that it would recover and that the loss would be less. 25. This increase is significant, because the owner of the ox that was damaged can collect the payment (half of the damage) for the damages, only from the body of the ox that caused the damage. Thus, if the damage to an ox was 200 zuz, and the ox that caused the damage was worth only 80 zuz, the fact that its value increased to 100 zuz could affect the amount the owner of the damaged ox receives. 26. I.e., in the above instance, the payment would be only 80 zuz. The rationale is that the owner of the ox who caused the damage will say: Did I fatten my ox so that you will take the profit?The Tur and the Ramah (Choshen Mishpat 404:2) differ and maintain that if the increase in the value of the ox exceeds the cost of fattening it, the cost of fattening it is deducted from its value, and the person whose ox was damaged receives half of the difference. 27. I.e., in the above instance, the payment would be 100 zuz. The rationale is that since the body of the ox that caused the damage is on lien for the damages, and now that body is worth 100 zuz, the entire amount may be expropriated. Note the Or Sameach, who emphasizes that although the payment is taken from the body of the ox that caused the damages, the lien is not established until the time of the trial. Thus, if the owner of the ox that caused the damage consecrates it, it is consecrated, and the owner of the damaged ox receives no payment at all. 28. The Tur (Choshen Mishpat 403) writes that although the responsibility to raise the ox is that of the owner of the cistern, if the owner of the ox becomes aware that his ox fell into the cistern, he must raise it and then bill the owner of the cistern for his costs. Sefer Me'irat Einayim 403:8 quotes this ruling. 29. It is as if the verse reads He shall give monetary recompense and the carcass to the owners (Bava Kama 10b). 30. Halachah 8.
1. [The following rules apply when] an ox breaks loose and causes damage after its owner had tied it with a rope and locked it [in a corral] in an acceptable manner.1 If it is a tam, he is required to pay only half the damages.
If it is mu'ad, he is not liable at all,2 as [implied by Exodus 21:29]: "[If the owners were warned,] and they did not guard him." [One can infer that] if they did guard, they are not liable. [And in the above instance, the ox] was guarded.3
Similarly, if an ox caused damage through an activity for which he is mu'ad at the outset - e.g., it ate a type of food that it usually eats or it broke objects by treading on them - [the owner] is not liable [in the above instance].
2. If the ox has been classified as mu'ad with regard to its right horn, but it is notmu'ad with regard to its left horn, and it got loose after it had been guarded in an acceptable manner, [the owner is required to] pay half the damages.4 [This applies] regardless of whether it gored with its right horn or its left horn.
3. [The following rules apply when] an animal injures a human being, whether intentionally or unintentionally. If the animal is a tam, half the damages must be paid from the body of the animal. If it is mu'ad, [the owner] must pay the entire amount of the damages.5
He is, however, not liable for compensation for unemployment, embarrassment, pain and medical expenses. For the Torah required redress for these matters only when one person injured a colleague.6 When, by contrast, it is an animal which caused the injury, it is as if [the animal] damaged the person's property, and [the owner] is liable for only half of the damages.
For this reason, if a person's ox causes [another individual] embarrassment, he is not liable. If, however, he causes that embarrassment himself, he is liable, as will be explained.7
If a person's ox injures his father or mother, or it sets fire to a person's grain heap on the Sabbath, [the owner] is liable, although if the person performed these same actions himself, he would not be liable.8
4. [The following rules apply when] a person brings his ox into a courtyard belonging to another person without his permission. If the [uninvited ox] was gored by an ox belonging to the owner or bitten by the owner's dog, the owner is not liable.
If the [uninvited ox] gored an ox belonging to the owner [of the courtyard], [the owner of the uninvited ox is liable.] If [his ox] is tam, [its owner] must pay half the damages. If it is mu'ad, he must pay the entire damages, as if it had gored [the other ox] in the public domain.9
5. [In the above situation, the following rules apply if the uninvited ox] falls into a cistern in this courtyard and spoils its water. If it spoiled the water immediately upon falling within,10 [the owner of the ox] is liable for the loss caused by the ruining of the water. If [the water] was not spoiled until afterwards,11 [the owner] is not liable. [The rationale is that] the ox is considered to be an obstruction in the cistern, and the water is considered to be a utensil. And one is never liable for damage to utensils caused by an obstruction.12
If [the owner of the ox received] permission to bring in his ox, the owner of the ox is not liable for any damage the ox caused.13 If the owner of the courtyard accepted responsibility for the ox,14 he is liable for the damages it suffers from falling into the cistern.
6. [The following rules also apply when] a person brings his ox into a courtyard belonging to another person without his permission. If the [uninvited ox] injures the owner of the courtyard, the owner of the courtyard suffers injury [because of the ox], or [the ox] digs pits or trenches, or burrows in the courtyard, the owner of the ox is liable for the damage to the courtyard [or to the owner]. [If another person] is injured because of these pits,15 the owner of the courtyard is liable, for it is his responsibility to fill them up.
7. [The following rules apply if] the owner of the courtyard damaged the ox: If he caused the damage unknowingly, he is not liable. For he can tell [the owner of the ox], "Why did you bring [your ox] in without permission. I was not aware of it until I [damaged it] unknowingly."16 If he caused the damage knowingly, he is liable for the full extent of the damage. He has the right to take the [intruding animal] out of his property; he does not have the right to damage it.
8. We evaluate the amount of damages caused.
What is implied? If either a person or his ox broke a utensil belonging to a colleague, we do not tell the person who caused the damage, "Take the broken utensil and pay its worth to its owner."17 Instead, we evaluate the loss caused to the utensil. This amount is paid by the person who caused the damage. [If the damage was caused by his ox, and the ox] was mu'ad, he is liable for the full amount of the damages. If it is tam, he is liable for half the damages.
[This is implied by Exodus 21:36]: "And the carcass will be his" - i.e., it belongs to the one whose property was damaged. If the carcass loses value, the person whose property was damaged suffers the loss. If its value rises, the increase is divided between the person who caused the damage and the person whose property was damaged.
9. What is implied? When an ox that is worth 200 [zuz] is gored and dies - its carcass was worth 100 [zuz] at the time of its death,18 but at the time of the trial, it decreased in value and was worth only 80. [In such an instance,] the person whose [ox] caused the damage is required to pay only 100 [zuz],19 if [the ox] was mu'ad. If it was a tam, the owner is required to pay only 50 [zuz] from the body of the ox.
10. If the value of the carcass increased, and it is worth 120 [zuz] at the time of the trial, the one who caused the damage must pay 9020 if the ox was mu'ad, and 45 from the body of the ox if it was a tam. [This is implied by Exodus 21:35]: "And they shall also divide the dead [ox]" - i.e., they shall divide the profit from the dead ox.21
11. [The amount that the person whose ox caused the damage must pay is subject to change in some, but not in all, circumstances. To illustrate:] An ox that was worth 200 [zuz] gored another ox worth 200 [zuz], causing it to depreciate 50 [zuz]. At the time of the trial, its value increased and it was worth 400 zuz. If, however, it had not been gored, it would have been worth 800 [zuz]. Whether its value increased because it was fattened or because of market fluctuations,22 the damages are evaluated according to the loss at the time the damage took place.23
If the ox became weak because of the injury it received and the damages amounted to 100 zuz at the time of the trial, the damages are evaluated according to the loss at the time of the trial.24
12. [The following rules apply if] the value of the ox that caused the damage increased at the time of the trial.25 If its value increased because the owner fattened it, only its value at the time it caused the damage is considered to be on lien for payment.26 If its value increased because of market fluctuations, half of the damages may be collected from its value at the time of the trial.27
13. It is the responsibility of the person who caused the damage to make the effort to bring the carcass of the ox that was damaged to the person [whose ox] was damaged.
What is implied? An ox fell into a cistern and died. [The owner of the cistern] must raise the carcass [of the ox]28 from the cistern and give it to its owner. Then we evaluate the extent of the loss.
[This is derived from Exodus 21:34]: "He shall give monetary recompense to the owners, and the carcass will be [the owners']." This teaches that he is obligated to return the carcass and the decrease in the value of the ox [from the time]29when it was alive, to its owner. If [the ox that caused the damage was a tam], [its owner is required to pay only] half the damages, as explained above.30
| FOOTNOTES | |
| 1. | I.e., with a gate that can withstand an ordinary wind. According to the Shulchan Aruch (Choshen Mishpat 396:1), this halachah is speaking about guarding the animal in an inferior manner as explained in the notes to Chapter 4, Halachah 4. If the animal is guarded in an excellent manner, there is no liability. |
| 2. | According to the Rambam, the owner is not liable for even half the damages. Rabbenu Asher and others differ. According to their view, since he did guard the ox to some degree, he is not liable for the full damages. He is, however, liable for half the damages, for there is no reason why the laws governing him should be more lenient than those governing an ordinary ox. See Sefer Me'irat Einayim 396:1. |
| 3. | Note the Rambam's Commentary on the Mishnah (Bava Kama, conclusion of Chapter 4), which states that since this ox frequently gores, it is a mitzvah to slaughter it. |
| 4. | Since the ox is considered to be a tam with regard to one element of goring, the owner is never freed from the obligation to pay the half damages that the owner of an ordinary ox would pay. |
| 5. | Although these principles are stated in the Torah explicitly with regard only to damage done to another animal, Bava Kama 33a explains how an equation to human injury is derived. |
| 6. | For Leviticus 24:19, the source for the laws applying to human injury, states: When a man will cause a blemish to a colleague.... Implied is that these laws apply only when the injury is caused by another man. |
| 7. | Hilchot Chovel UMazik 1:1,9. |
| 8. | A human being is not liable in these instances. The rationale is that he is liable for capital punishment for injuring his parents or desecrating the Sabbath. Whenever a person incurs both liability for capital punishment and monetary restitution with the performance of a single deed, he is freed of responsibility for the monetary claim. See Hilchot Chovel UMazik 4:5,7. |
| 9. | The words as if it had gored in the public domain refer to the fact that the owner of an ox that is tam pays for only half the damages. One might draw a comparison to the damage caused by eating or treading, in which instance the owner of the ox is not held liable for damage caused in the public domain, but he is liable for the entire amount of damages caused in the domain of the owner of the produce. To counter this hypothesis, the Rambam emphasizes that with regard to goring, one is liable as in the public domain, but not more. |
| 10. | E.g., the ox was covered with filth at the time it fell into the cistern. |
| 11. | E.g., the ox spoiled it with its wastes. |
| 12. | See Chapter 13, Halachah 1. |
| 13. | The Ra'avad questions the Rambam's ruling, maintaining that, as stated in Chapter 1, Halachot 8-9, when an ox causes damage in a courtyard belonging jointly to its owner and another person, the owner of the ox is liable for the damage it causes. Why then, asks the Ra'avad, is the owner of the ox not liable in this situation? The Shulchan Aruch (Choshen Mishpat 398:5), however, quotes the Rambam's ruling. |
| 14. | As mentioned in the notes on Chapter 3, Halachot 13-15, the Tur differs with Rambam and maintains that granting the owner of the ox permission to bring his ox into the courtyard is equivalent to accepting responsibility for any damage to it caused by the owner or his property. With regard to damages caused by others, however, the owner of the courtyard is not liable unless he accepts responsibility. The Shulchan Aruch (loc. cit.) quotes the Rambam's wording, while the Ramah follows the perspective of the Tur. |
| 15. | The Maggid Mishneh and Sefer Me'irat Einayim 398:2 state that the owner of the courtyard is generally not liable for the injury another person suffered because of these pits, since he can always claim: Who gave you permission to enter my property? Only when the owner gives up ownership of his property or gives others the right to enter is he liable. |
| 16. | This phrase has attracted the attention of the commentaries, for it implies that if the owner of the courtyard knew that the animal had entered his property, he would be liable even when he caused the damage accidentally. From Hilchot Chovel UMazik 1:16, 6:3, however, it appears that he would not be liable in such an instance. See Migdal Oz, Lechem Mishneh. |
| 17. | Note the contrast to Hilchot Geneivah 1:15. See Sefer Me'irat Einayim 403:1. |
| 18. | The Tur maintains that the time that is significant is not the time of the animal's death, but the time when its owner is notified regarding its death. Until that time, the one who caused the damage is responsible for the loss. The Ramah (Choshen Mishpat 403:2) mentions this view. |
| 19. | And not 120. |
| 20. | I.e., the 100 zuz that the owner of the ox lost, minus 10 zuz, which is the share of the profit given to the person who caused the damage. |
| 21. | The Tur and the Ramah (Choshen Mishpat 403:2) emphasize that although the person who caused the damage is given a share in the value of the dead ox, this applies only with regard to the loss. If the price of meat rises to the extent that the meat of the ox is worth more than the ox was worth when it was alive, the one who caused the damages is not given a share of the profits. |
| 22. | I.e., the price of cattle increased. |
| 23. | I.e., 50 zuz if the ox was mu'ad. With regard to the larger sum, the matter is considered one of grama, an indirect cause of damage. Therefore, the owner of the ox is not liable (Sefer Me'irat Einayim 404:2). |
| 24. | Tosafot, Bava Kama 10b draws a distinction between this instance and Halachah 8, which states that the increased loss to the carcass is suffered by its owner. The rationale for this distinction is that once the ox died, its owner should have sold it immediately. In this instance, since the ox was still alive, its owner thought that it would recover and that the loss would be less. |
| 25. | This increase is significant, because the owner of the ox that was damaged can collect the payment (half of the damage) for the damages, only from the body of the ox that caused the damage. Thus, if the damage to an ox was 200 zuz, and the ox that caused the damage was worth only 80 zuz, the fact that its value increased to 100 zuz could affect the amount the owner of the damaged ox receives. |
| 26. | I.e., in the above instance, the payment would be only 80 zuz. The rationale is that the owner of the ox who caused the damage will say: Did I fatten my ox so that you will take the profit?The Tur and the Ramah (Choshen Mishpat 404:2) differ and maintain that if the increase in the value of the ox exceeds the cost of fattening it, the cost of fattening it is deducted from its value, and the person whose ox was damaged receives half of the difference. |
| 27. | I.e., in the above instance, the payment would be 100 zuz. The rationale is that since the body of the ox that caused the damage is on lien for the damages, and now that body is worth 100 zuz, the entire amount may be expropriated. Note the Or Sameach, who emphasizes that although the payment is taken from the body of the ox that caused the damages, the lien is not established until the time of the trial. Thus, if the owner of the ox that caused the damage consecrates it, it is consecrated, and the owner of the damaged ox receives no payment at all. |
| 28. | The Tur (Choshen Mishpat 403) writes that although the responsibility to raise the ox is that of the owner of the cistern, if the owner of the ox becomes aware that his ox fell into the cistern, he must raise it and then bill the owner of the cistern for his costs. Sefer Me'irat Einayim 403:8 quotes this ruling. |
| 29. | It is as if the verse reads He shall give monetary recompense and the carcass to the owners (Bava Kama 10b). |
| 30. | Halachah 8. |
Hilchot Nizkei Mamon - Chapter Eight
1. When an ox belonging to an Israelite gores an ox that was consecrated1 or an ox that was consecrated gores an ox belonging to an Israelite, [the owner of the goring ox] is not liable, [as implied by Exodus 21:35]: "[If one person's ox injures] an ox belonging to a colleague...."2
All consecrated entities for which one is held liable for using them for one's own purposes3 are not bound by the laws of damages.4 Animals that were consecrated and then disqualified5 are bound by the laws of damages. This applies regardless of whether it is they who cause the damage, or they who are damaged. For they have been redeemed and can be considered ordinary.6
2. When [an animal consecrated for] a peace offering causes damage, the damages may be collected from its meat.7 [The person whose property was damaged] does not, however, collect his due from the portions burned on the altar. For the prohibition against using consecrated property for one's own purposes applies to the portions of sacrifices of lesser sanctity8 burned on the altar, as explained in Hilchot Me'ilah.9
Similarly, [if an animal consecrated for] a thanksgiving offering causes damage, the damages may be collected from its meat. They may not, however, be collected from the bread that accompanies it,10 for the bread is not considered to be part of the meat.
3. How can [the person whose property was damaged] collect [his due]? He and his company should eat, in a holy manner, a portion of the meat equivalent to half the damages he suffered.11
What is meant by the statement that [the person whose property was damaged] does not, however, collect his due from the portions burned on the altar? That if half the damages he suffered was equivalent to a dinar, and the meat and the portions to be offered on the altar together were worth two dinarim, but the meat without the portions to be offered was worth only a dinar and a half, [the person whose property was damaged] receives only half the meat, and not two thirds of the meat.
4. Similarly, an ox that is ownerless and causes damage is also not held responsible for the damage it causes. [This is also derived from the phrase,] "an ox belonging to a colleague," implying that the ox must be defined as the property of an owner.
What is implied? When an ox that is ownerless gores [another ox], and before the person whose property was damaged takes possession of [the goring ox] another person does so, that other person is not liable for the damages.12
Moreover, even if an ox that is defined as the property of an owner causes damage, and afterwards the owner consecrates it or declares it ownerless, [payment is] not expropriated [from the body of the ox]. [For payment to be expropriated], it must be owned by one person at the time it caused the damage and at the time of the the trial.13
5. When an ox - whether a tam or a mu'ad - belonging to a Jew gores an ox belonging to a gentile, [the Jew] is not liable. [The rationale is] that the gentiles do not hold a person responsible for damage caused by his livestock.14Therefore we judge this case according to their laws.15
When, by contrast, an ox - whether a tam or a mu'ad - belonging to a gentile gores an ox belonging to a Jew, [the gentile] must pay the entire amount of the damages. This is a penalty imposed upon the gentiles because they are not careful about [the observance of] the mitzvot,16 and they do not remove factors that can cause damage. If we will not hold them liable for the damage caused by their animals, they will not guard them, and [the animals] will destroy other people's property.
6. When an ox that is tam causes damage and then is sold by its owner before the trial takes place, the person whose property was damaged may collect his due from it17 despite the fact that it was sold.18 Afterwards, the purchaser should collect that sum from the [previous] owner who sold it to him. [The rationale for this ruling is]19 that once an ox has gored, the matter becomes known, and the purchaser should not have purchased the animal until the one whose property was damaged had collected his due.
7. If [the owner of an ox that] caused damage consecrates [the ox], it is consecrated. [This law was instituted] so that people will not say, "An animal that was consecrated can lose its status without being redeemed."20
[If the owner] slaughters the ox, [the person whose property was damaged] may collect his due from the meat.21 [If the owner] gives it away as a present, [the present] is binding,22 but [the person whose property was damaged] may collect his due from [the animal].
8. If [an ox] caused damage, there was a trial, and afterwards, [the owner] sold it, the sale is of no consequence. If he consecrated it, it is not consecrated, and if he gave it away as a present, the present is of no consequence.23
If the creditors of the owner [of the ox] seize it first, [to collect their due from it], they are not entitled to retain possession. Instead, the person whose property was damaged collects his due from it. This applies whether the debt was undertaken before the damage was done24 or afterwards. [The rationale is] that even if it belonged to the creditors at the outset and caused damage, [the person whose property was damaged] would be entitled to collect his due.25
9. [The following rules apply when] an ox that is mu'ad causes damage: Regardless of whether the trial took place already or not, if [the owner] has consecrated it, sold it, given it as a present or slaughtered it, his deed is binding.
If the creditors of the owner lead [the ox] away before [the person whose property was damaged takes possession of it], they acquire it. [This applies] whether the debt owed them was made before the damage took place or afterwards.26 [The rationale is that] the person whose property was damaged is entitled to collect his due from the choicest property belonging to the owner. All of [the owner's] property is on lien because of the damage caused.27
10. When, for the person whose property was damaged, the court is required to expropriate property belonging to the person who caused the damage,28 his movable property should be expropriated first.29 If he does not own any movable property, or the property he owns is not sufficient to pay for all the damages, the remainder should be expropriated from the choicest properties he owns. As long as movable property is found, even property of inferior quality,30 landed property should not be expropriated.
11. If the person who caused the damage dies before he pays, the court does not expropriate the movable property belonging to his heirs. Instead, [they expropriate] the landed property [in the estate], taking that of least value.31 [The rationale is that] the person whose property was damaged becomes one of the creditors [of the person who caused the damage], and movable property is never considered to be on lien to a creditor.
If the person whose property was damaged [seized] possession of movable property [belonging to] the person who caused the damage in the latter's lifetime, payment for the damages may be collected from this [movable property] after his death.
12. The Geonim have already ordained that a debt owed a creditor can be expropriated from the movable property [in the estate].32 This ruling has been accepted by all the [Jewish] courts of law.33 Therefore, damages may also be expropriated from movable property left to heirs.
If [the deceased] did not leave any movable property, [the creditor] may expropriate the landed property of least value. For as explained [in the previous halachah], whenever a person seeks to expropriate property from heirs, he is given the property of the least value.
13. Damages should not be collected, nor is an atonement fine imposed, nor is an animal executed34 unless definite proof is brought [as substantiated] by acceptable witnesses. We do not say that since only shepherds,35 servants,36and the like are found in the stables of horses, the stalls of cattle and the corrals of sheep, their testimony should be accepted if they testify that one animal damaged another. Similarly, if minors or women37 testify that one person injured another or caused another type of damage, [one might think] that we rely on them. This is not so.38
Instead, financial redress is required because of the testimony of witnesses only when the witnesses are acceptable and fit to testify with regard to other matters, and they give testimony, [on which basis] the court obligates the one who caused the damage to pay.
14. When an ox was pasturing at the edge of a river, and another ox is found dead near him, even though the dead ox was gored, and this ox was prone to gore - or the dead ox was bitten and this ox was prone to bite - we do not say: "One can be certain that this bit it, or this gored it."
Even if one of a group of camels is known to bite, and another camel is found dead at its side, we do not say that it is certain that this one killed it, unless the matter was observed by acceptable witnesses.39
FOOTNOTES 1. I.e., the owner of the ox consecrated it to serve as a burned offering or a sin offering, or (if it was blemished) to donate its value to the Temple, but he did not bring it to the Temple as yet. 2. One can infer that since the ox that is consecrated no longer belongs to a colleague, the laws that follow in the verse do not apply. 3. See Hilchot Me'ilah, which describes these laws. 4. For they are all considered to be consecrated unto God. 5. See Hilchot Pesulei HaMukdashim, which describes when a consecrated animal is placed into this category.See Chapter 12, Halachah 21, from which it is evident that the liablity applies only when a disqualified animal was already redeemed. If it has not been redeemed, the owner is not liable. 6. Although it is forbidden to work with, or shear these animals, they are still considered the private property of their owners and are thus an ox belonging to a colleague. 7. Since the meat of a peace offering is eaten by the owners, the animal is still considered to be their personal property, despite the fact that it is consecrated. Therefore, payment for the damages can be expropriated from the meat.See the commentary of the Lechem Mishneh, who questions the apparent contradiction between the Rambam's ruling here and his ruling in Hilchot Geneivah 2:1. 8. Those that may be eaten outside the Temple Courtyard. 9. Hilchot Me'ilah 2:1. 10. Forty loaves of bread are offered together with the thanksgiving offering. These are, however, considered to be a separate entity and are not on lien to the person whose property was damaged. 11. I.e., as befits sacrifices of lesser sanctity. 12. I.e., one might think that the person whose property was damaged might be entitled to expropriate the amount of the loss from the body of the ox. Nevertheless, since the ox was acquired by its present owner after the damage took place, he is not held responsible. 13. Bava Kama 44b derives this concept from the exegesis of Exodus 21:29. If, however, the previous owner retakes possession of the ox, he is liable for the damages even though he declared it ownerless Tur and Shulchan Aruch (Choshen Mishpat 406:3). With regard to the sale of the ox, see Halachah 6. (See also Halachah 8 and notes.) 14. The Ra'avad differs with the rationale stated by the Rambam, and objects because the gentiles seize animals in lieu of payment for the damage that they cause. The Ra'avad maintains that by speaking of a colleague's ox, the Torah excludes one belonging to a gentile. The Tur and the Shulchan Aruch (Choshen Mishpat 406:1) quote the Rambam's ruling. 15. See Hilchot Melachim 10:12, which states:The following rules apply when there is a dispute between a Jew and an idolater: If the Jew will fare better according to their laws, they are judged according to their laws.... If the Jew will fare better according to our laws, they are judged according to Torah law.... It appears to me that this approach is not followed with regard to a resident alien. He is always judged according to their laws.See also the Rambam's Commentary on the Mishnah (Bava Kama 4:3), which echoes and expands upon this principle. 16. It would appear that the intent of the word mitzvot, meaning commandments, is the seven universal laws commanded to Noach and his descendants. One of them is the law obligating societies to set up a system of civil law. See Bava Kama 38a. 17. For the damages that an ox that is tam causes are collected from its body. Thus, it is as if the ox is on lien for the damages it caused. 18. This implies that the sale is not nullified. The purchaser may plow with the ox directly after the purchase. Moreover, he cannot return it to the original owner because of the claim against it. 19. I.e., why the purchaser is at all responsible for the damage the ox caused previously. 20. Implied is that in essence the person whose property was damaged should be allowed to collect his due from the ox without redeeming it. Our Sages, however, did not allow this, because a person who knew that the ox was consecrated, but did not know that it had gored, might see it being given to the person whose property was damaged and think that an animal that was consecrated can lose its sacred status without being redeemed. Instead, they required that the person whose property was damaged redeem the ox for a minimal fee and then collect his due from it (Maggid Mishneh).The Chatam Sofer (Choshen Mishpat, Responsum 165) notes that there appears to be a contradiction between this halachah and Halachah 4. From Halachah 4, it appears that the person can consecrate the ox and thus totally nullify the lien of the person whose property was damaged. From this halachah, by contrast, it appears that the lien remains.In resolution, the Chatam Sofer makes a distinction between the sanctification of the value of the ox (as in this halachah), in which instance the lien remains, and the sanctification of the body of the ox (as in Halachah 4), in which instance the lien is nullified. 21. The Tur and the Ramah (Choshen Mishpat 407:2) state that if the slaughter causes the value of the ox to depreciate, the owner must reimburse the person whose property was damaged for the loss. 22. And therefore the recipient of the present may work with the animal. 23. For the lien on the body of the ox possessed by the person whose property was damaged has now been firmly established. He thus becomes a partner in the ownership of the ox, and the original owner cannot carry out a sale without informing him. 24. I.e., if the obligation were incumbent on the person whose ox caused the damage himself or on his property, those who had a prior claim would be entitled to take the ox as payment. In this instance, the obligation is associated with the body of the ox itself, and therefore the person whose property was damaged is entitled to the ox for the reason mentioned by the Rambam. 25. The Rambam's ruling is quoted by the Shulchan Aruch (Choshen Mishpat 407:4). The Tur and the Ramah differ and state that if the owner of the ox had already designated the ox as payment for a specific debt that existed before the damage took place, that creditor has a right to the ox. 26. According to Talmudic law, an earlier debt takes precedence over a later one with regard to landed property. With regard to movable property, by contrast, whichever creditor takes control of an asset first is entitled to it. 27. This explains the fundamental difference between damage caused by a tam and a mu'ad. When a tam causes damage, its own body is on lien for the damage; the damage is not considered to be a debt owed by the owner of the ox. When, in contrast, a mu'ad causes damage, the opposite is true. The person whose property was damaged has no claim to the ox itself; his claim is borne by all the holdings of its owner. 28. These laws, though applicable to damage caused by an ox that is mu'ad, apply to all other cases of damage for which a person is held responsible. 29. Bava Kama 7b explains that movable property is considered to be easier to sell after it has been expropriated than landed property. Therefore, it is considered to be choicer and should be given priority.Sefer Me'irat Einayim 419:1 writes that the person who caused the damages has the prerogative of giving the person whose property he damaged movable property or landed property, whichever he desires. The Siftei Cohen 419:2 differs and states that according to the Rambam, the Beit Yosef and others, if the person who caused the damages possesses movable property, he must pay in movable property, regardless of whether or not he desires. 30. The Hebrew term used by the Rambam literally means bran.As long as the person pays for the damage with movable property, the quality of the movable property with which he pays is of no consequence. The Hagahot Maimoniot state that according to the Rambam and Rabbenu Yitzchak Alfasi, even if the person who caused the damage possesses cash, he may pay the person whose property he damaged with movable property of inferior quality.Although there is debate concerning this concept among the commentaries, it is accepted as binding by the Shulchan Aruch (Choshen Mishpat 419:1). 31. During the lifetime of the person who caused the damage, the choicest property in his holdings is expropriated. After his death, however, the status of the obligation changes, and the property of least value is expropriated (Gittin 48b).This law applies regardless of the age of the heirs, even if they are past majority (Maggid Mishneh; Siftei Cohen 419:7). See, however, Sefer Me'irat Einayim 419:5. 32. In his gloss on Hilchot Ishut 16:7, the Maggid Mishneh explains that this ruling reflects a difference in the socio-economic status of the Jewish people. Land was commonly owned in the Talmudic period. In contrast, the ownership of land was less common in the era of the geonim. Movable property thus rose in importance, and a creditor would feel secure even when an obligation was supported only by movable property. 33. Thus, although it is post-Talmudic in origin, it should be adhered to because of its universal acceptance. See, however, Hilchot Ishut 16:8. 34. When an ox that is mu'ad kills a human being, the ox should be executed, and its owner is obligated to pay an atonement fine, as explained in Chapter 10. The Ra'avad explains that if a person admits that either he or his property caused damage, he is obligated for financial payment and for an atonement fine. His ox is not, however, executed because of his statements. 35. Who are disqualified from serving as witnesses, because they are suspected of pasturing their flocks in fields belonging to other people, for this is equivalent to stealing (Hilchot Edut 10:4). 36. Who are not acceptable witnesses (Hilchot Edut 9:2,4,7). 37. Who are not acceptable witnesses (Hilchot Edut 9:2,4,7). 38. The Ramah (Choshen Mishpat 35:14) writes that although this is the legal standard, it has already become customary to accept witnesses whose testimony would ordinarily be disqualified, if there is no way of finding witnesses who are acceptable. Note, however, Sefer Me'irat Einayim 35:30, which states that the Ramah's leniency does not apply with regard to damages. 39. In this as in many other instances, the Rambam emphasizes that circumstantial evidence - no matter how indisputable - is not sufficient. According to Torah law, a claim can be established only through the testimony of witnesses. (See also Hilchot Chovel UMazik 5:4; Hilchot Sanhedrin 20:1, 24:1.)
1. When an ox belonging to an Israelite gores an ox that was consecrated1 or an ox that was consecrated gores an ox belonging to an Israelite, [the owner of the goring ox] is not liable, [as implied by Exodus 21:35]: "[If one person's ox injures] an ox belonging to a colleague...."2
All consecrated entities for which one is held liable for using them for one's own purposes3 are not bound by the laws of damages.4 Animals that were consecrated and then disqualified5 are bound by the laws of damages. This applies regardless of whether it is they who cause the damage, or they who are damaged. For they have been redeemed and can be considered ordinary.6
2. When [an animal consecrated for] a peace offering causes damage, the damages may be collected from its meat.7 [The person whose property was damaged] does not, however, collect his due from the portions burned on the altar. For the prohibition against using consecrated property for one's own purposes applies to the portions of sacrifices of lesser sanctity8 burned on the altar, as explained in Hilchot Me'ilah.9
Similarly, [if an animal consecrated for] a thanksgiving offering causes damage, the damages may be collected from its meat. They may not, however, be collected from the bread that accompanies it,10 for the bread is not considered to be part of the meat.
3. How can [the person whose property was damaged] collect [his due]? He and his company should eat, in a holy manner, a portion of the meat equivalent to half the damages he suffered.11
What is meant by the statement that [the person whose property was damaged] does not, however, collect his due from the portions burned on the altar? That if half the damages he suffered was equivalent to a dinar, and the meat and the portions to be offered on the altar together were worth two dinarim, but the meat without the portions to be offered was worth only a dinar and a half, [the person whose property was damaged] receives only half the meat, and not two thirds of the meat.
4. Similarly, an ox that is ownerless and causes damage is also not held responsible for the damage it causes. [This is also derived from the phrase,] "an ox belonging to a colleague," implying that the ox must be defined as the property of an owner.
What is implied? When an ox that is ownerless gores [another ox], and before the person whose property was damaged takes possession of [the goring ox] another person does so, that other person is not liable for the damages.12
Moreover, even if an ox that is defined as the property of an owner causes damage, and afterwards the owner consecrates it or declares it ownerless, [payment is] not expropriated [from the body of the ox]. [For payment to be expropriated], it must be owned by one person at the time it caused the damage and at the time of the the trial.13
5. When an ox - whether a tam or a mu'ad - belonging to a Jew gores an ox belonging to a gentile, [the Jew] is not liable. [The rationale is] that the gentiles do not hold a person responsible for damage caused by his livestock.14Therefore we judge this case according to their laws.15
When, by contrast, an ox - whether a tam or a mu'ad - belonging to a gentile gores an ox belonging to a Jew, [the gentile] must pay the entire amount of the damages. This is a penalty imposed upon the gentiles because they are not careful about [the observance of] the mitzvot,16 and they do not remove factors that can cause damage. If we will not hold them liable for the damage caused by their animals, they will not guard them, and [the animals] will destroy other people's property.
6. When an ox that is tam causes damage and then is sold by its owner before the trial takes place, the person whose property was damaged may collect his due from it17 despite the fact that it was sold.18 Afterwards, the purchaser should collect that sum from the [previous] owner who sold it to him. [The rationale for this ruling is]19 that once an ox has gored, the matter becomes known, and the purchaser should not have purchased the animal until the one whose property was damaged had collected his due.
7. If [the owner of an ox that] caused damage consecrates [the ox], it is consecrated. [This law was instituted] so that people will not say, "An animal that was consecrated can lose its status without being redeemed."20
[If the owner] slaughters the ox, [the person whose property was damaged] may collect his due from the meat.21 [If the owner] gives it away as a present, [the present] is binding,22 but [the person whose property was damaged] may collect his due from [the animal].
8. If [an ox] caused damage, there was a trial, and afterwards, [the owner] sold it, the sale is of no consequence. If he consecrated it, it is not consecrated, and if he gave it away as a present, the present is of no consequence.23
If the creditors of the owner [of the ox] seize it first, [to collect their due from it], they are not entitled to retain possession. Instead, the person whose property was damaged collects his due from it. This applies whether the debt was undertaken before the damage was done24 or afterwards. [The rationale is] that even if it belonged to the creditors at the outset and caused damage, [the person whose property was damaged] would be entitled to collect his due.25
9. [The following rules apply when] an ox that is mu'ad causes damage: Regardless of whether the trial took place already or not, if [the owner] has consecrated it, sold it, given it as a present or slaughtered it, his deed is binding.
If the creditors of the owner lead [the ox] away before [the person whose property was damaged takes possession of it], they acquire it. [This applies] whether the debt owed them was made before the damage took place or afterwards.26 [The rationale is that] the person whose property was damaged is entitled to collect his due from the choicest property belonging to the owner. All of [the owner's] property is on lien because of the damage caused.27
10. When, for the person whose property was damaged, the court is required to expropriate property belonging to the person who caused the damage,28 his movable property should be expropriated first.29 If he does not own any movable property, or the property he owns is not sufficient to pay for all the damages, the remainder should be expropriated from the choicest properties he owns. As long as movable property is found, even property of inferior quality,30 landed property should not be expropriated.
11. If the person who caused the damage dies before he pays, the court does not expropriate the movable property belonging to his heirs. Instead, [they expropriate] the landed property [in the estate], taking that of least value.31 [The rationale is that] the person whose property was damaged becomes one of the creditors [of the person who caused the damage], and movable property is never considered to be on lien to a creditor.
If the person whose property was damaged [seized] possession of movable property [belonging to] the person who caused the damage in the latter's lifetime, payment for the damages may be collected from this [movable property] after his death.
12. The Geonim have already ordained that a debt owed a creditor can be expropriated from the movable property [in the estate].32 This ruling has been accepted by all the [Jewish] courts of law.33 Therefore, damages may also be expropriated from movable property left to heirs.
If [the deceased] did not leave any movable property, [the creditor] may expropriate the landed property of least value. For as explained [in the previous halachah], whenever a person seeks to expropriate property from heirs, he is given the property of the least value.
13. Damages should not be collected, nor is an atonement fine imposed, nor is an animal executed34 unless definite proof is brought [as substantiated] by acceptable witnesses. We do not say that since only shepherds,35 servants,36and the like are found in the stables of horses, the stalls of cattle and the corrals of sheep, their testimony should be accepted if they testify that one animal damaged another. Similarly, if minors or women37 testify that one person injured another or caused another type of damage, [one might think] that we rely on them. This is not so.38
Instead, financial redress is required because of the testimony of witnesses only when the witnesses are acceptable and fit to testify with regard to other matters, and they give testimony, [on which basis] the court obligates the one who caused the damage to pay.
14. When an ox was pasturing at the edge of a river, and another ox is found dead near him, even though the dead ox was gored, and this ox was prone to gore - or the dead ox was bitten and this ox was prone to bite - we do not say: "One can be certain that this bit it, or this gored it."
Even if one of a group of camels is known to bite, and another camel is found dead at its side, we do not say that it is certain that this one killed it, unless the matter was observed by acceptable witnesses.39
| FOOTNOTES | |
| 1. | I.e., the owner of the ox consecrated it to serve as a burned offering or a sin offering, or (if it was blemished) to donate its value to the Temple, but he did not bring it to the Temple as yet. |
| 2. | One can infer that since the ox that is consecrated no longer belongs to a colleague, the laws that follow in the verse do not apply. |
| 3. | See Hilchot Me'ilah, which describes these laws. |
| 4. | For they are all considered to be consecrated unto God. |
| 5. | See Hilchot Pesulei HaMukdashim, which describes when a consecrated animal is placed into this category.See Chapter 12, Halachah 21, from which it is evident that the liablity applies only when a disqualified animal was already redeemed. If it has not been redeemed, the owner is not liable. |
| 6. | Although it is forbidden to work with, or shear these animals, they are still considered the private property of their owners and are thus an ox belonging to a colleague. |
| 7. | Since the meat of a peace offering is eaten by the owners, the animal is still considered to be their personal property, despite the fact that it is consecrated. Therefore, payment for the damages can be expropriated from the meat.See the commentary of the Lechem Mishneh, who questions the apparent contradiction between the Rambam's ruling here and his ruling in Hilchot Geneivah 2:1. |
| 8. | Those that may be eaten outside the Temple Courtyard. |
| 9. | Hilchot Me'ilah 2:1. |
| 10. | Forty loaves of bread are offered together with the thanksgiving offering. These are, however, considered to be a separate entity and are not on lien to the person whose property was damaged. |
| 11. | I.e., as befits sacrifices of lesser sanctity. |
| 12. | I.e., one might think that the person whose property was damaged might be entitled to expropriate the amount of the loss from the body of the ox. Nevertheless, since the ox was acquired by its present owner after the damage took place, he is not held responsible. |
| 13. | Bava Kama 44b derives this concept from the exegesis of Exodus 21:29. If, however, the previous owner retakes possession of the ox, he is liable for the damages even though he declared it ownerless Tur and Shulchan Aruch (Choshen Mishpat 406:3). With regard to the sale of the ox, see Halachah 6. (See also Halachah 8 and notes.) |
| 14. | The Ra'avad differs with the rationale stated by the Rambam, and objects because the gentiles seize animals in lieu of payment for the damage that they cause. The Ra'avad maintains that by speaking of a colleague's ox, the Torah excludes one belonging to a gentile. The Tur and the Shulchan Aruch (Choshen Mishpat 406:1) quote the Rambam's ruling. |
| 15. | See Hilchot Melachim 10:12, which states:The following rules apply when there is a dispute between a Jew and an idolater: If the Jew will fare better according to their laws, they are judged according to their laws.... If the Jew will fare better according to our laws, they are judged according to Torah law.... It appears to me that this approach is not followed with regard to a resident alien. He is always judged according to their laws.See also the Rambam's Commentary on the Mishnah (Bava Kama 4:3), which echoes and expands upon this principle. |
| 16. | It would appear that the intent of the word mitzvot, meaning commandments, is the seven universal laws commanded to Noach and his descendants. One of them is the law obligating societies to set up a system of civil law. See Bava Kama 38a. |
| 17. | For the damages that an ox that is tam causes are collected from its body. Thus, it is as if the ox is on lien for the damages it caused. |
| 18. | This implies that the sale is not nullified. The purchaser may plow with the ox directly after the purchase. Moreover, he cannot return it to the original owner because of the claim against it. |
| 19. | I.e., why the purchaser is at all responsible for the damage the ox caused previously. |
| 20. | Implied is that in essence the person whose property was damaged should be allowed to collect his due from the ox without redeeming it. Our Sages, however, did not allow this, because a person who knew that the ox was consecrated, but did not know that it had gored, might see it being given to the person whose property was damaged and think that an animal that was consecrated can lose its sacred status without being redeemed. Instead, they required that the person whose property was damaged redeem the ox for a minimal fee and then collect his due from it (Maggid Mishneh).The Chatam Sofer (Choshen Mishpat, Responsum 165) notes that there appears to be a contradiction between this halachah and Halachah 4. From Halachah 4, it appears that the person can consecrate the ox and thus totally nullify the lien of the person whose property was damaged. From this halachah, by contrast, it appears that the lien remains.In resolution, the Chatam Sofer makes a distinction between the sanctification of the value of the ox (as in this halachah), in which instance the lien remains, and the sanctification of the body of the ox (as in Halachah 4), in which instance the lien is nullified. |
| 21. | The Tur and the Ramah (Choshen Mishpat 407:2) state that if the slaughter causes the value of the ox to depreciate, the owner must reimburse the person whose property was damaged for the loss. |
| 22. | And therefore the recipient of the present may work with the animal. |
| 23. | For the lien on the body of the ox possessed by the person whose property was damaged has now been firmly established. He thus becomes a partner in the ownership of the ox, and the original owner cannot carry out a sale without informing him. |
| 24. | I.e., if the obligation were incumbent on the person whose ox caused the damage himself or on his property, those who had a prior claim would be entitled to take the ox as payment. In this instance, the obligation is associated with the body of the ox itself, and therefore the person whose property was damaged is entitled to the ox for the reason mentioned by the Rambam. |
| 25. | The Rambam's ruling is quoted by the Shulchan Aruch (Choshen Mishpat 407:4). The Tur and the Ramah differ and state that if the owner of the ox had already designated the ox as payment for a specific debt that existed before the damage took place, that creditor has a right to the ox. |
| 26. | According to Talmudic law, an earlier debt takes precedence over a later one with regard to landed property. With regard to movable property, by contrast, whichever creditor takes control of an asset first is entitled to it. |
| 27. | This explains the fundamental difference between damage caused by a tam and a mu'ad. When a tam causes damage, its own body is on lien for the damage; the damage is not considered to be a debt owed by the owner of the ox. When, in contrast, a mu'ad causes damage, the opposite is true. The person whose property was damaged has no claim to the ox itself; his claim is borne by all the holdings of its owner. |
| 28. | These laws, though applicable to damage caused by an ox that is mu'ad, apply to all other cases of damage for which a person is held responsible. |
| 29. | Bava Kama 7b explains that movable property is considered to be easier to sell after it has been expropriated than landed property. Therefore, it is considered to be choicer and should be given priority.Sefer Me'irat Einayim 419:1 writes that the person who caused the damages has the prerogative of giving the person whose property he damaged movable property or landed property, whichever he desires. The Siftei Cohen 419:2 differs and states that according to the Rambam, the Beit Yosef and others, if the person who caused the damages possesses movable property, he must pay in movable property, regardless of whether or not he desires. |
| 30. | The Hebrew term used by the Rambam literally means bran.As long as the person pays for the damage with movable property, the quality of the movable property with which he pays is of no consequence. The Hagahot Maimoniot state that according to the Rambam and Rabbenu Yitzchak Alfasi, even if the person who caused the damage possesses cash, he may pay the person whose property he damaged with movable property of inferior quality.Although there is debate concerning this concept among the commentaries, it is accepted as binding by the Shulchan Aruch (Choshen Mishpat 419:1). |
| 31. | During the lifetime of the person who caused the damage, the choicest property in his holdings is expropriated. After his death, however, the status of the obligation changes, and the property of least value is expropriated (Gittin 48b).This law applies regardless of the age of the heirs, even if they are past majority (Maggid Mishneh; Siftei Cohen 419:7). See, however, Sefer Me'irat Einayim 419:5. |
| 32. | In his gloss on Hilchot Ishut 16:7, the Maggid Mishneh explains that this ruling reflects a difference in the socio-economic status of the Jewish people. Land was commonly owned in the Talmudic period. In contrast, the ownership of land was less common in the era of the geonim. Movable property thus rose in importance, and a creditor would feel secure even when an obligation was supported only by movable property. |
| 33. | Thus, although it is post-Talmudic in origin, it should be adhered to because of its universal acceptance. See, however, Hilchot Ishut 16:8. |
| 34. | When an ox that is mu'ad kills a human being, the ox should be executed, and its owner is obligated to pay an atonement fine, as explained in Chapter 10. The Ra'avad explains that if a person admits that either he or his property caused damage, he is obligated for financial payment and for an atonement fine. His ox is not, however, executed because of his statements. |
| 35. | Who are disqualified from serving as witnesses, because they are suspected of pasturing their flocks in fields belonging to other people, for this is equivalent to stealing (Hilchot Edut 10:4). |
| 36. | Who are not acceptable witnesses (Hilchot Edut 9:2,4,7). |
| 37. | Who are not acceptable witnesses (Hilchot Edut 9:2,4,7). |
| 38. | The Ramah (Choshen Mishpat 35:14) writes that although this is the legal standard, it has already become customary to accept witnesses whose testimony would ordinarily be disqualified, if there is no way of finding witnesses who are acceptable. Note, however, Sefer Me'irat Einayim 35:30, which states that the Ramah's leniency does not apply with regard to damages. |
| 39. | In this as in many other instances, the Rambam emphasizes that circumstantial evidence - no matter how indisputable - is not sufficient. According to Torah law, a claim can be established only through the testimony of witnesses. (See also Hilchot Chovel UMazik 5:4; Hilchot Sanhedrin 20:1, 24:1.) |
• Shabbat, Menachem Av 30, 5775 · 15 August 2015
"Today's Day"
Tuesday Menachem Av 30, Rosh Chodesh 5703
Begin saying L'david ori (p. 81). The custom in the Rebbe's home1 is to practice sounding the shofar during this day. On the second day of Rosh Chodesh begin sounding the shofar after davening.
Torah lessons: Chumash: Shoftim, Shlishi with Rashi.
Tehillim: 145-150.
Tanya: X. After greetings (p. 439) ...souls took flight..." (p. 441).
The Alter Rebbe at first used to say brief maamarim. For example, the maamar Zecher rav tuvcha and its amplification, published in the Siddur,2 was said in six sequential sections, at somewhat greater length than in its printed version.
Compiled and arranged by the Lubavitcher Rebbe, Rabbi Menachem Mendel Schneerson, of righteous memory, in 5703 (1943) from the talks and letters of the sixth Chabad Rebbe, Rabbi Yosef Yitzchak Schneersohn, of righteous memory.
FOOTNOTES
1. And the general Chabad custom.
2. The reference is to the Siddur with chassidic discourses.
Daily Thought: A Year in a Day
As the entirety of the sun is reflected in every glistening droplet of water, so is the entirety of life reflected in your individual lifetime.
And in each of your years, you pass through the entirety of your life.
And in every day of your life you are born, live your life through, and pass on from this world.
All your life lies in the hands of today.[Torat Menachem 5748, page 573.]
____________________________
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