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Bava Kama, 87

1) A BLIND PERSON'S OBLIGATION TO OBSERVE THE TORAH

OPINIONS: Rebbi Yehudah exempts a blind person from all of the Mitzvos in the Torah. Does this mean that a blind man can do whatever he pleases and is viewed like a Shoteh with regard to the Mitzvos?

(a) REBBI AKIVA EIGER and the TUREI EVEN (Megilah 24a, DH Eino) assert that a blind person is Chayav to keep the Mitzvos Lo Ta'aseh, even if he is exempt from all Mitzvos Aseh. They prove this from TOSFOS here (DH v'Chen (#2)) and in Megilah who writes that a blind person is Chayav to keep Mitzvos d'Rabanan, and therefore he can make Berachos on Mitzvos that he performs. This is why Rav Yosef was not saddened that he could not recite Berachos when he heard that he was exempt from Mitzvos (since he was blind), because he *could* recite Berachos even though he was blind. The Gemara in Shabbos (23a) explains that one makes a Berachah on a Mitzvah d'Rabanan, saying "Asher Kideshanu b'Mitzvosav v'Tzivanu," because of the Mitzvah d'Oraisa of "Lo Sasur," which obligates a person, mid'Oraisa, to follow the dictates of the Rabanan. Why, then, should a blind person be able to say "Asher Kideshanu b'Mitzvosav v'Tzivanu" for a Mitzvah d'Rabanan, if he is not obligated in the Mitzvah d'Oraisa of "Lo Sasur" which is what obligates people to fulfill Mitzvos d'Rabanan?

Obviously, the blind person is also obligated to observe "Lo Sasur" and all Mitzvos Lo Ta'aseh. Rebbi Yehudah means to exempt the blind person only from Mitzvos Aseh.

This is also the opinion of the PRI MEGADIM (Introduction to Orach Chaim 3:29), who cites additional proof from the fact that Rebbi Yehudah requires a verse to exempt a blind person from Misah and Galus when he kills another Jew. If he would not be prohibited to kill, then it would be obvious that he cannot be punished! This is also the opinion of the SHE'EILAS YA'AVETZ (1:75), the CHIDA in MACHZIK BERACHAH (OC 53:5), the MAHARATZ CHIYUS here. Tosfos writes that the Rabanan obligated a blind person to observe the Mitzvos so that he not be like a Nochri. This seems to imply that a blind person does not even have to keep the Mitzvos Lo Ta'aseh that apply to other Jews, which is why he would be like a Nochri. However, as the Pri Megadim writes, Tosfos might simply mean that a Jew needs to perform *positive actions* (Mitzvos Aseh) in order to define him as a Jew, since a lack of action (observing the Mitzvos Lo Ta'aseh) does not give him a clear Jewish identity.

(b) The NODA B'YEHUDAH (Mahadura Tinyana, OC 112) argues with the Pri Megadim and writes that according to Rebbi Yehudah, a blind person is exempt even from Mitzvos Lo Ta'aseh. The MINCHAS CHINUCH (2:25) points out that this is the opinion of the RID in SEFER HAMACHRIA (#78). Depending on the Girsa in the ROSH, the Rosh in Kidushin (1:49) might also be of this opinion. How will the Noda b'Yehudah, Rid, and Rosh refute the proofs of the Acharonim cited above?

With regard to Rebbi Akiva Eiger's proof from the fact that a blind person may say "v'Tzivanu," the proof can be expanded by asking that if the blind person is not obligated to observe the Mitzvah of "Lo Sasur," then what obligates him to listen to what the Rabanan decree in the first place? This question is paralleled by the question that the Acharonim ask on the RAMBAN in Sefer ha'Mitzvos (Shoresh ha'Rishon). The Ramban (arguing on the Rambam) writes that we cannot derive from "Lo Sasur" that there is a Mitzvah d'Oraisa to keep every Mitzvah d'Rabanan. According to the Ramban, what then *does* obligate a person to listen to the Rabanan? Similarly, the Acharonim (KUNTRUSEI SHI'URIM, Bava Metzia 12:6) ask how the Rabanan can obligate a Katan to keep the Mitzvos (according to Tosfos in Berachos 48a, DH Ad; see RASHI there (DH Ad), and RAMBAN (Milchamos) to Berachos 20b), and how the Rabanan can obligate a Nochri to keep certain Mitzvos (see LECHEM MISHNEH, Hilchos Melachim 10:9).

The KOVETZ SHI'URIM (Divrei Sofrim 1:15-18, and in Kovetz He'oros 16:18) answers that when it is clear to us what the will of Hashem is, we are required to act on that will even if it is not written explicitly in the Torah. Since we know that the Rabanan are able to determine the will of Hashem, we are required to accept what they decree based on what they understand to be the will of Hashem. The same applies to a Katan, even though he is not obligated to keep the Mitzvos. Accordingly, the same may be suggested with regard to a blind person; he is obligated to listen to the Rabanan even if he is not obligated to observe the Mitzvos of the Torah. That is why he may say "v'Tzivanu" when performing a Mitzvah d'Rabanan. (DEVAR YAKOV 87:7)

RAV SHLOMO ZALMAN AUERBACH zt'l (Minchas Shlomo 2:51:1) answers that the Lav of "Lo Sasur" applies to every living person of sound mind, since it is a general statement addressed to the inhabitants of the entire world. Therefore, it applies to a blind person, Katan, and Nochri, even if they are not obligated to observe any of the other Mitzvos of the Torah.

If a blind person is not obligated to keep the Mitzvos Lo Ta'aseh, then why does the verse have to exempt him from a Chiyuv of Misah and Galus when he kills? The MISHNAS CHACHAMIM (#2) and the MINCHAS CHINUCH (2:25) write that a blind Jew cannot be obligated in less Mitzvos than a Nochri. Therefore, he is obligated to observe the Mitzvah of Retzichah even though he is exempt from Mitzvos Lo Ta'aseh. (IMREI HA'TZVI proves this from Lemech (Bereishis 4:23-24), who was held responsible for killing his son, even though he was blind.)

(c) RAV GUSTMAN zt'l (in Kuntrusei Shi'urim) disagrees with the Minchas Chinuch and others who obligate a blind person at least in the Mitzvos of B'nei Noach. He points out that the RAMBAM in Perush ha'Mishnayos to Chulin (beginning of Perek 7) writes that Jews are not obligated to perform Mitzvos because of what Hashem told Noach or Avraham Avinu. Rather, we perform the Mitzvos because we were commanded to perform them by Hashem at Har Sinai. Hence, a blind Jew should have no obligations due to Mitzvos that Hashem commanded to Noach before Har Sinai.

If this is correct, then why is it necessary for the verse to exempt a blind person from being punished for killing? Some suggest that after Rebbi Yehudah found a verse to exempt a blind person from all of the Mitzvos, he no longer needed the verse to exempt a blind person from Misah or Galus, similar to what we wrote earlier (Insights to 86b) in the name of TOSFOS here (DH v'Chen). (SHEYAREI KORBAN, Makos 2:5, DH b'Lo)

The MAHARSHAM (OC 53:14) proves from the Yerushalmi that even though the verse exempts a blind person from Mitzvos, another verse is necessary to exempt him from Galus. To explain why, he suggests that it is only after we know that a blind person is exempt from punishment that we can learn -- from the verse which compares Mitzvos to Mishpatim -- that a blind person is exempt from Mitzvos.

We might suggest a third approach to why a verse is needed to exempt a blind person from Misah and Galus. Rav Gustman zt'l quotes the SHITAH MEKUBETZES in the name of MAHARI KOHEN TZEDEK to support his opinion that a blind person is exempt from all of the Mitzvos. Mahari Kohen Tzedek quotes RABEINU TAM who says that the principle that a person who observes the Mitzvos and who is commanded to observe the Mitzvos ("Metzuveh v'Oseh") is greater than one who observes the Mitzvos and is not commanded to observe them ("Eino Metzuveh v'Oseh"), applies only with regard to Mitzvos that a person would have to keep even if they had not been written in the Torah (such as the Seven Mitzvos of B'nei Noach). Since Rav Yosef was saddened to find out that a blind person is exempt from Mitzvos because he would not receive the reward of a "Metzuveh v'Oseh," apparently he was exempt even from the Mitzvos of B'nei Noach. (See Kuntrusei Shi'urim there, and IGROS MOSHE YD 1:6, cited by Yosef Da'as here, who discuss what Mahari Kohen Tzedek meant.)

It seems that Mahari Kohen Tzedek was bothered by the question discussed by the Ge'onim in the Shitah Mekubetzes there, and by Tosfos in Kidushin (31a). They ask why a person is greater when he keeps Mitzvos that he is commanded to keep. It would seem that, on the contrary, Rav Yosef's original assumption -- that a person who is not commanded is greater -- is more logical, since a person who does the Mitzvah even when he is not commanded to do it is conducting himself in the manner of Midas Chasidus (see RASHBA)! To answer this question, Mahari Kohen Tzedek refers us to the Gemara earlier (38a) which teaches that when the Nochrim did not keep the Seven Mitzvos that they were commanded to keep, Hashem repealed those Mitzvos, so that even when a Nochri observes them he does not receive reward like one who is "Metzuveh v'Oseh," but only like one who is "Eino Metzuveh v'Oseh." The Gemara makes it clear that a Nochri *must* observe the Seven Mitzvos nowadays, and nevertheless his reward is for a person who is "Eino Metzuveh v'Oseh." How can that be?

It must be that even had Hashem not commanded Noach to observe seven Mitzvos, Noach and his children would have had a moral obligation to observe them based on logical considerations. However, when performing a Mitzvah in such a manner, one receives less reward than a person who was told by Hashem to observe the Mitzvah, since the person who was told to observe the Mitzvah is fulfilling the mandate of Hashem, aside from the moral obligation. This is what the Gemara here means as well when it says that a person who is "Metzuveh v'Oseh" is greater. The Gemara is referring only to the Mitzvos that are logical and one would have had to observe not just as Midas Chasidus even if the Torah had not specifically commanded them. (Perhaps for the other Mitzvos, one who is not obligated *would* receive a greater reward.)

According to this, even according to the Kuntrusei Shi'urim who asserts that the commandments that Hashem gave to Noach or Avraham do not apply to Jews after the giving of the Torah, nevertheless a blind person would be bound to fulfill the Seven Mitzvos of B'nei Noach out of a moral obligation. The only difference between a moral obligation and a Mitzvah is the amount of reward received. This might also be the source for the Rambam who writes that we do not perform Mitzvos because of what Hashem told Noach and Avraham. The Rambam learned this from the Gemara (38a) which teaches that the Mitzvos of B'nei Noach no longer apply and their obligation is based solely on moral considerations.

The Gemara in Kidushin applies the dictum that a "Metzuveh v'Oseh" is greater with regard to the Mitzvah of Kibud Av Em. This seems to contradict what we have written, since we do not find that a Ben Noach has an obligation of Kibud Av v'Em based on moral considerations. The Gemara in Nazir (61a) says clearly that a Nochri is not obligated to honor his father, and the Gemara in Kidushin which discusses the acts of Dama ben Nesinah concludes that if a Nochri who is *not* "Metzuveh v'Oseh" receives such reward for performing the Mitzvah of Kibud Av v'Em, then all the more so will a Jew receive such great reward for performing the Mitzvah.

However, we may defend what we have written by pointing out that it is obvious that a person would be morally obligated to honor his parents, even had the Torah not specified that he honor them, as the Rambam writes (Shemoneh Perakim, Perek 6). Therefore, it seems obvious that a Nochri should be obligated in the Mitzvah of Kibud Av v'Em. The Gemara in Nazir means to say only that a Nochri cannot be sure who his father is, and therefore he cannot be held responsible to honor his father. In the Gemara in Kidushin, Dama ben Nesinah honored his father nonetheless, because he assumed that the man who raised him was indeed his father. When the Gemara calls him "Eino Metzuveh v'Oseh," it is referring merely to the Gemara in Bava Kama (38a) which asserts that a Nochri is rewarded for observing his Mitzvos only like a person who is "Eino Metzuveh v'Oseh."

Further support for this can be brought from the Halachah (RAMBAM, Hilchos Melachim 5:11; see OR SAME'ACH there) that a Nochri who converts must respect his parents so that people should not say that he performed more Mitzvos before conversion. This implies that a Nochri does have to respect his parents before conversion. (See also SEFER HA'ESHKOL, Hilchos Milah #39.)

This is what our Gemara means when it says that a blind person is "Eino Metzuveh v'Oseh." He is obligated to keep the Mitzvos only because of moral considerations, and not because they are written in the Torah. (M. Kornfeld)

QUESTION: Rav Yosef initially thought that if a blind person is exempt from Mitzvos and nevertheless he performs the Mitzvos, he will receive a greater reward than one who is commanded to keep the Mitzvos and keeps them, since a blind person is not commanded to keep them and yet he keeps them nonetheless. This assumption is based on the concept that if a person does more than he is required to do with regard to Mitzvos, it is considered a Midas Chasidus.

How can this be reconciled with the Halachah with regard to sitting in a Sukah when it is raining (OC 639:7)? A person is exempt from sitting in a Sukah when it is raining, and one who decides to sit in the Sukah when it is raining is called a "Hedyot." The Yerushalmi (Shabbos 1:2) expresses this by saying that "one who is exempt from a Mitzvah and performs it nonetheless, is called a 'Hedyot.'" (ME'IRI)

In fact, with regard to Mitzvah of Sukah itself, we find that although a person is not obligated to drink water in a Sukah, it is considered a Midas Chasidus to do so (OC 639:2). This, too, seems to contradict the Yerushalmi that calls a person a "Hedyot" for performing a Mitzvah when it is not required! (BIKUREI YAKOV, cited by the BI'UR HALACHAH, end of OC 639)

ANSWERS:

(a) The ME'IRI, cited by the Shitah Mekubetzes, answers that a person is considered a "Hedyot" only when the action that he is doing does not teach a person any positive attribute, or have any positive lesson, such as when a person eats in a Sukah while he is uncomfortable due to the rain. In contrast, a Mitzvah which other people are commanded to perform obviously holds within it something positive that can be gained from the performance of the Mitzvah. Even though a blind person is not commanded, he can still gain these lessons by performing the Mitzvos.

The same can be said with regard to drinking water in the Sukah. As the BIKUREI YAKOV explains, the Torah does not go so far as to obligate a person to drink water in the Sukah. However, it is commendable to do so since one does that type of act in his home. Eating in the Sukah while it is raining is not something that one does in his own home (where the rain enters). Moreover, the Gemara considers rain to be a Heavenly sign that Hashem is not pleased with our performance of the Mitzvos. (See also VILNA GA'ON, Mishnayos Berachos 1:3).

(b) A person is not called a "Hedyot" if he performs an act that has a "Shem Mitzvah." When rain is falling in the Sukah, since a person normally does not live in a house into which rain enters, it does not fit into the description of the Mitzvah of Sukah, which is "k'Ein Taduru" (i.e. live in the Sukah in the manner in which you live in your home), and it looks as though he is adding to the Torah. However, when the act can be described as a Mitzvah, then even the person who is exempt from that Mitzvah can perform the Mitzvah as a Midas Chasidus. (This is similar to the first answer.) (RAMBAN, Kidushin 31a)

OPINIONS: The Gemara asks whether a father receives payments of Nezek that are paid to his daughter who is a Ketanah. Do we give the payments to the father, like all of the "Shevach Ne'urim," since the wound caused her to decrease in value, or do we say that the father receives Shevach Ne'urim only because he can give her to a Mukeh Shechin in marriage (in return for payment), but since he does not have the right to beat his daughter, he is not entitled to the payments for the wounds she receives?

Rav and Reish Lakish rule that the father does not receive his daughter's Nezek. Rebbi Yochanan rules that the father does receive his daughter's Nezek.

We know that the father receives Shevach Ne'urim not only from his daughter who is a Ketanah, but also from his daughter who is a Na'arah. Will Rebbi Yochanan also give the father of a Na'arah the payments of Nezek of his daughter? (PNEI YEHOSHUA)

The SHITAH MEKUBETZES asks this question in the name of RABEINU MOSHE of SARAKOSTA.

(a) RASHI (beginning of 88a) writes that Rebbi Yochanan gives the Nezek to the father because it is in his ability to sell her. This implies that he only receives payments for a *Ketanah*, whom he can sell as an Amah Ivriyah, for he cannot sell a Na'arah as an Amah Ivriyah. This is also the implication of the Gemara when it asks what the Halachah is with regard to the damages done to a *Ketanah*, and it does not mention a Na'arah.

(b) However, the PNEI YEHOSHUA points out that TOSFOS (87b, DH Amar Lei) explains that our Gemara is discussing specifically the Nezek which represents the devaluation of the daughter with regard to her value when given over as a wife. This is also the implication of the Gemara which mentions the fact that the father receives the Shevach Ne'urim since he can give the daughter to a Mukeh Shechin, rather than saying that he receives the Shevach Ne'urim because he can sell her (see RASHI here, DH Shevach Ne'urim).

Perhaps Rashi (88a) is also referring to the father's right to receive money in return for giving over his daughter as a wife, and not as an Amah Ivriyah (see Insights to Kesuvos 46:2).

Why, then, does the Gemara question only who gets the money of the damages of one's daughter who is a *Ketanah*? CHIDUSHEI RABEINU MEIR SIMCHAH suggests that perhaps there are two payments for wounding a Na'arah -- one for her depreciation as an Amah Ivriyah (which is given only to the father of a Ketanah), and one for her depreciation as a wife (which is given only to the Na'arah). The Gemara is referring to the former payment, and that is why it mentions only a Ketanah.

Alternatively, the Gemara wants to emphasize that according to Rav, not only does the father of a Na'arah not receive payments of damages done to his daughter, but even the father of a Ketanah does not receive the payments, since he is not permitted to hit her.

87b