Vol. 18   No. 50

Parshas Ki Seitzei

" … and after that, you may have relations with her and you may take her as a wife" (Ibid).

Rashi in Kidushin maintains that the soldier discussed in the Pasuk is only permitted to marry the captive woman and to have relations with her after the thirty-day period with all the preparations that it entailed, had elapsed. This means in effect, that she was then already fully converted.

Tosfos there (21a) asks why, according to Rashi, Chazal say that the Torah speaks against the Yeitzer ha'Ra (implying that the Torah is permitting something that would otherwise be forbidden) in order to combat the Yeitzer-ha'Ra. But since she remains forbidden to him until she has converted, to which concession is the Torah referring?

Furthermore, they query him from the Pasuk in Shmuel, where Tamar (David ha'Melech's 'daughter' from Ma'achah, a Y'fas To'ar whom David captured in war) told Amnon (David ha'Melech's son) that his father would certainly not withhold her from him, should he request her hand in marriage.

Now this, says Tosfos, would make good sense if Tamar had been born from David's first encounter with her (which the Torah seems to permit).

conceived Tamar, which means that Tamar was born a Jewess. If that is so, Amnon was her paternal brother. So how could she suggest that he marry her, and that David ha'Melech would even give his consent?

In answer to the second question, Tosfos comes up with the interesting Chidush that Tamar was not really the daughter of David at all, but that Ma'achah was already pregnant with her from her gentile husband when David captured her. And if the Navi refers to her as David ha'Melech's daughter, and describes the special cloak that she wore as the type of garment that princesses wore at that time, this was only because she grew up in David's house, and because she was treated like a princess.

And as for the first question, Tosfos cites the well-known principle - 'Eino domeh mi she'yesh lo pas be'salo le'mi she'ein lo pas be'salo' (that one cannot compare someone who has bread in his basket to someone who does not … '). In other words, now that the Torah expressly permits the soldier to take the woman into his home immediately, and living with her as a wife is merely a matter of time, he will be able to overcome his Yeitzer ha'Ra much more easily than if the prohibition had remained in full force.

Rabeinu Tam however, explains that the Torah actually permits the soldier to have relations with a Y'fas To'ar immediately - just once, and it is only after the first time that they have been together that he has to wait a month until he is permitted to convert her and marry her. This explanation answers both questions that he asks on Rashi.

In similar vein to Tosfos first Kashya, the Riva on the Chumash asks that, seeing as, according to Rashi, by the time the soldier is permitted to live with the captive, she is a fully-fledged Jewess, what do Chazal mean when they say that the Torah grants him a special concession 'against the Yeitzer ha'Ra' (since at that stage, they are permitted to live together anyway)?

Citing R. Elyakim, he presents what appears to be a compromise between the two above explanations.

Granted, he says, the Torah initially permits relations with the Y'fas To'ar only after the month of preparations and her conversion. However, in the event that the soldier is unable to overcome his Yeitzer-ha'Ra, then it permits him to be intimate with her just once, before proceeding with the month of preparations.

It now transpires that the first intimacy with the Y'fas To'ar is completely forbidden, according to Rashi, completely permitted, according to Rabeinu Tam, and permitted believed, according to R. Elyakim.

"And it shall be when you go to war against your enemies … and you take captives" (21:10).

This comes to include Cana'anim, Rashi explains.

But how can that be, asks the Riva, when the Torah explicitly demands that we kill every member of the seven Cana'ani nations?

And he answers that that speaks specifically about a Cana'ani who married a Canananis, and whose baby adopts the Yichus of his mother (as we learned in last week's Parshah - See Rashi there 7:4). Whereas the current Pasuk is speaking about a Cana'ni who married a woman from another nation, whose baby follows the Yichus of its mother, and who is therefore not a Cana'ani.

"And you see there a beautiful woman (eishes y'fas to'ar)" 21:11.

"Eishes", comments Rashi, 'even an Eishes ish (a married woman)'.

But we already know this, asks the Riva, from the Pasuk in Kedoshim (20:10) - " … someone who commits adultery with a married woman", which adds "who commits adultery with the wife of his fellow-Jew" - to preclude the wife of a gentile? Based on a Gemara in Sanhedrin, he cites Rebbi Elyakim, who explains that even though the captor would anyway not be Chayav for adultery, we nevertheless require a Pasuk to teach us that he is also not Chayav for stealing a gentile's wife. Alternatively, he explains, the D'rashah 'even an Eishes ish', is not an independent D'rashah, but is based on the D'rashah in Kedoshim.

Citing other commentaries, the Riva explains that from the Pasuk in Kedoshim we would only know that the adulterer is not Chayav Misah, and we still need the current Pasuk to teach us that the relationship with a married non-Jewess is not subject to a La'av either.

He queries this however, from a Gemara in Avodah-Zarah, which rules that if someone has relations with a non-Jewish woman, he is subject to the Rabbinical Isur known as 'Nashgaz', implying that there is no Isur min ha'Torah at all, so how can one suggest that there is even a La'av? (This question is unclear however, since perhaps the Gemara in Avodah-Zarah is speaking after the current Pasuk, which negates the La'av, too?)

Citing Rabeinu Tam, the Riva finally answers that were it not for our Pasuk ("Eishes"), we would have thought that, even though adultery with the married Y'fas To'ar is not subject even to a La'av, it would however be subject to the Asei (said in Bereishis in connection with Adam ha'Rishon) "and he shall cleave to his wife" - 'and not to somebody else's'. Therefore we need the Pasuk "Eishes" to permit an Eishes y'fas to'ar completely.

"Do not hand over a slave to his master, when he comes to you to escape from his master" (23:16).

Rashi refers to Unklus, who interprets the Pasuk in connection with a non-Jewish slave belonging to a non-Jewish master. Alternatively, he says, it pertains to the slave of a Jewish master who lives in Chutz la'Aretz, and who runs to Eretz Yisrael to esvape. And it is he whom one is forbidden to return to his master in Chutz la'Atretz.

Rashi adds the second explanation, the Bartenura explains, because that of Targum Unklus is superfluous. It is obvious, he explans, that when a man comes to you for protection, it is wrong to betray his trust in you and to hand him back.

"And the firstborn son that she will bear shall arise on the name of (be named after) his (the Yavam's deceased) brother"(25:6).

This is the literal translation of the words "Ve'hoyoh ha'b'chor asher teiled yokum al-sheim ochiv", and that is how Unklus translates it.

Not so Rashi, the Riva explains. According to Rashi, following the words that precede it "And he shall take her to him as a wife and perform Yibum with her", the Pasuk continues - "And the B'chor" (i.e. the brother who performs Yibum with her, and who if possible, should be the firstborn brother) "who will bear" (i.e. that the Yevamah must be fit to have children [to preclude an Aylonis - who is barren]).

" … who encountered you on the way … " (25:18).

This is how both Targum Unklus and Targum Yonasan translate "asher korcho ba'derech".

Rashi adds two alternative explanations - 1. ' who defiled you (with the sin of homosexuality [from the word 'keri'])'; and 2. 'who cooled you down' (in your Avodas Hashem [from the word 'kar' - cold]).

The Bartenura explains that Rashi did not like the first explanation, bearing in mind that Amalek's deliberate attack could hardly be termed 'an encounter'; and he did not like the second one either, since we never find the word "korcha" used in this sense.

So he opted for the third explanation, with which he had no problem.

The Bartenura, who is perhaps concerned with the fact that Targum Unklus and Yonasan both agree with the first explanation, concludes that we do in fact, find the word 'kara' that is deliberate and not by chance, when in Parshas Sh'mos (5:3) the Torah writes "Elokei ho'Ivrim nikro oleinu", which refers to a very deliberate revelation to Moshe, and which is therefore translated as "The G-d of the Ivrim revealed Himself to us".

See Targum Unklus in both places.

"And it shall be on the day that he bequeaths to his sons that which he will have (eis asher yih'yeh lo) … " (21:16).

The Ba'al ha'Turim points out that the Gematriyah of the words "eis asher yih'yeh lo" is equivalent to that of 'melamed she'ha'ben noteil be'ro'uy ke'vemuchzak' - meaning 'this teaches us that a son inherits what the father was owed just as he inherits what he actually had in his possession (when he died)'. See following entry.

" … to give him (the B'chor) double of all that is in his (father's) possession, because (be'chol asher yimatzei lo, ki … ) he is the first of his strength … " (21:17).

The last letters of the four words "(be'chol … asheR yimatzEi lO kI" spells 'ro'uy' (what is owed to him), add the 'Lamed' of "be'choL" and the 'Alef' of "Asher" (LO) and we have in total 'Lo Ra'uy' - a hint that a B'chor does not inherit his extra portion from what his father is still owed, only what was actually in his possession when he died. See previous Pearl.

" … ben sorer u'moreh" (21:18).

The Gematriyah of "Sorer", the Ba'al ha'Turim points out, is equivalent to that of 'Zeh Avshalom ben David" - one of the most infamous of rebellious sons of all time.

He also observes that the word "u'moreh", which is missing a 'Vav', can be pronounced 'u'moroh', a warning to the ben sorer u'moreh that his end will be bitter.

"And you shall destroy the evil from your midst, and all Yisrael … " (21:22).

The Pasuk continues "And if a man will have sinned … ". This teaches us, says the Ba\al ha'Turim, that all of Yisrael are responsible for one another (Kol Yisrael Areivim zeh ba'zeh) to wipe out sins from Yisrael and to rebuke the sinner. (The popular adage 'Mind your own business!' has no place in Jewish law - at least not in this context.)

Pasuk 21 talks about someone who is sentenced to stoning, says the Ba'al ha'Turim, whilst Pasuk 22 deals with someone who has been hanged (which is not a punishment per se).

This teaches us, he says, that whoever is sentenced to stoning must then be hanged (until dusk).

"Do not leave his corpse on the tree … but you shall surely bury him" (21:23).

The Ba'al ha'Turim explains that the juxtaposition of "tree" to burial teaches us two things: a. that the 'gallows' on which a person is hanged must be buried together with him, and b. that he should be buried in a (wooden) coffin.

" .., it (the lost article that you found) shall be with you until your brother seeks it (oso) … " (22:2).

Citing the Gemara in Bava Metzi'a, the Ba'al ha'Turim explains that by translating "oso" as 'its sign' (of identification), one can switch the phrase to the finder. In that case, what the Pasuk is now saying is that someone who finds a lost object may not return it to anybody before cross-examining him. How? By demanding that he provides him with the object's identification marks.

"You should not see your brother's donkey or ox falling (due to the heavy load that it is carrying) by the wayside and hide from them … " (22:4).

The juxtaposition of the words "falling" and "you shall hide", says the Ba'al ha'Turim, suggests that there are times that one is permitted to hide one's face from them - with regard to a 'Zakein ve'Eino l'fi ch'vodo' (a Chacham for whom, loading animals would be undignified). See Ba'al ha'Turim 21:23.

"A woman may not wear a man's clothes (Lo yih'yeh k'li gever al ishah)" 22:5.

The Gematriyah of "gever al ishah" is equivalent to that of 'Torah'. This teaches us, says the Ba'al ha'Turim, that a man should not teach his daughter (the oral) Torah.

Perhaps one can attribute the fact that a curse is effective to the fact that the Soul of speech stems from the upper realms, as the Pasuk writes in Bereishis (2:7, in connection with the creation of Adam) " … and He breathed into his nostrils a Soul of life and man became a living Soul, 'a spirit that speaks'. G-d therefore endowed the ability to speak with the power to achieve things that are beyond the physical world in which it operates. This explains why we constantly see that, according to the loftiness of the person, and to the extent that he cleaves to spirituality, the words of Tzadikim take effect swiftly regarding the person on whom they pronounce them. This is something that is well-known among people with a deeper perception.

Another reason for the prohibition is in order to prevent discord between one person and the other, but rather to promote peaceful relations between them; since "the birds of the Heaven will carry the voice", and the curse that one utters becomes known to the person concerned, resulting in bad relationships between people.

Whereas the reason given by the Rambam for this prohibition is in order not to elicit revenge and instill anger in the person that one is cursing, since anger is an evil Midah. He elaborates on this point in his Seifer. In any event, he seems to believe that a curse per se, is ineffective, so no harm will befall the person who has been cursed; and the Torah forbids it only because cursing results in anger and revenge.

Some Dinim of the Mitzvah … Although the Gemara in Shavu'os (35a) forbids cursing under any circumstances, someone who does so does not receive Malkos unless he curses using one of the Names of G-d, such as Koh, Shakai, Elokah, or one of His Kinuyin (descriptive Names), such as 'Chanun' or 'Kano' and suchlike. And someone who does is Chayav, irrespective of which language he curses in - including Names of G-d, since any Name of G-d in any language falls under the heading of 'Kinuyin'.

I often notice during Davenning, people whose Tefilin shel Rosh have dropped below their hairline and others who Nefilas Apayim (Tachanun) on their bare arms. May I take this opportunity of reminding them that the Tefilin shel Rosh should be entirely above the hairline, and that a sleeve or whatever should divide between one's head and one's arm when falling Nefilas Apayim.

See Mishnah B'rurah 27:33 and 131:31, respectively.