Vol. 11   No. 30

Parshas Behar-Bechukosai

Last week, we cited the opinion of the Seifer ha'Chinuch, who explains that whereas both counting the Omer and counting the years of the Yovel are verbal Mitzvos, counting the days of a Zav and Zavah is rather one of keeping check of one's physical condition, and not of actually counting the days. And he attributes the distinction to tradition, as we explained there. In other words, the words "And you shall count" have a dual meaning, and it is a matter of tradition as to how we explain them. Strangely, there is nothing in Shas or in Chazal that indicates two such interpretations. If there had been, then the Chinuch would have referred to it, as he tends to do throughout his Seifer. In fact, one would normally connect 'tradition' with Halachah le'Moshe mi'Sinai, but there seems to be no source to say that it is.

The Ha'amek Davar arrives at a similar conclusion (though not quite the same) as the Seifer ha'Chinuch. He answers Tosfos Kashya (why a Zavah does not recite a B'rachah) by claiming that there is no Mitzvah for a Zav to count aloud, and therefore no B'rachah is required, as we will explain shortly.

Only the basis of his explanation differs radically from that of the Seifer ha'Chinuch.

The Ha'amek Davar explains that the term "ve'sofroh loh" ('and she shall count for herself') employed by the Torah, implies counting silently (keeping track of the days), in which case no B'rachah is required, seeing as Chazal did not institute a B'rachah for a Mitzvah that one performs in the mind.

And the same would apply to Sefiras ha'Omer (23:15), where the Torah also uses a similar expression "u'Sefartem lochem" ('and you shall count for yourselves'). Only there the Pasuk adds (in Pasuk 16) "tisperu chamishim yom" ('you shall count, fifty days'), a superfluous phrase from which the Gemara in Menachos (65b) specifically obligates us to verbalize the counting, which consequently requires a B'rachah. Interestingly, the Chinuch appears to have overlooked this Gemara.

And in Behar (25:8) too, the Ha'amek Davar refers to the Toras Kohanim, which learns from a superfluous Pasuk that Beis-Din is obligated to count both the individual years and the Sh'mitin (like we do by the Sefiras ha'Omer, when we count the days and the weeks). He concludes that this must refer to doing so verbally (though he does not explain why).

The Gemara in Erchin (32b) requires two conditions for the Yovel to apply min haTorah: 1. that all of Yisrael must be living in Eretz Yisrael; 2. that each tribe must be settled in its own territory. From the moment that Reuvern, Gad and half of Menasheh went into exile, the institution of Yovel ceased (even though the majority of Klal Yisrael still remained in Eretz Yisrael). From that time on, it appears, bearing in mind that they never all returned (even during the period of the second Beis Hamikdash), until the present day, Yovel was never reinstated. And this is the opinion of the Rambam in Hilchos Sh'mitin (10:8).

Refer to Tosfos in Gitin (36a) d.h. bi'z'man, citing Rabeinu Tam, who maintains that the Yovel was, in fact, practiced during the time of the second Beis Hamikdash. Be that as it may, even Tosfos will agree that nowadays, when neither of the two above conditions have been fulfilled, Yovel is not applicable. And what's more, the Chachamim did not institute Yovel mi'de'Rabanan, like they did by Sh'mitah.

Sh'mitah too, according to most commentaries, does not apply nowadays min haTorah (though there they agree that the Rabbanan did institute Shmitah mi'de'Rabanan).

The one exception is the Rambam, who writes in Hilchos Sh'mitin (4:25), that Shmitah applies both when the Beis Hamikdash is standing and when it is not. And it is from the fact that the Rambam says nothing about it being de'Rabanan, that the Kesef Mishnah extrapolates that he must hold that it is min haTorah.

The Torah Temimah however, queries this, mainly based on the Rambam himself, who (at the beginning of Hilchos T'rumos) uses exactly the same words with regard to T'rumos and Ma'asros, yet at the end of the chapter, he concludes that nowadays, they are only mi'de'Rabanan. In that case, when he says with regard to Sh'mitah 'when the Beis Hamikdash is not standing' why should he not also be referring to Sh'mitah mi'de'Rabanan? Particularly, as there are many places where he clearly indicates that Sh'mitah nowadays is only mi'de'Rabanan.

"And G-d spoke to Moshe at Har Sinai ... " (25:1).

The Torah mentions Har Sinai here, Rashi explains, to teach us that just as Sh'mitah was taught in its entirety (the k'lalim and the p'ratim) at Har Sinai, so too were all the Mitzvos taught at Har Sinai in their entirety.

The Rosh explains that Rashi bases what he says on the fact that Sinai is not repeated in Seifer Devarim, which was said at Arvos Mo'av. In that case, it must have all been said at Sinai, and we can assume that the same applies to all the other Mitzvos.

The Rosh also cites the Ramban, who interprets Rashi differently. The Ramban explains that the Torah presents the 'k'lalim' of Sh'mitah in Parshas Mishpatim (where the Torah writes "ve'Eileh ha'Mishpatim" [see Rashi there]) and the p'ratim in Behar (where it writes "be'Har Sinai"), to teach us that both the k'lalim and the p'ratim were said at Sinai. And at the end of the Seifer, the Torah writes "These are the Mitzvos which G-d commanded Moshe for the B'nei Yisrael at Har Sinai", comparing all the Mitzvos to the Sh'mitah. This teaches us that, like the Sh'mitah, all the Mitzvos were taught k'lalim and p'ratim, at Har Sinai.

All the Parshiyos in Seifer Vayikra until now, says the Rosh, were said in the Ohel Mo'ed - the Korbanos, the Dinim of a Metzora a Ba'al Keri (someone who had an emission) and a woman who gave birth, the eight days of the Milu'im with the relevant Parshiyos. And indeed, that is where they all belong. All of these are directly connected with the Ohel Mo'ed (alias the Mishkan).

Behar and Bechukosai however, on the one hand are not so closely connected with the Ohel Mo'ed and the Kohanim, which is why the Torah presents them as having been said at Har Sinai. Whilst on the other hand, they do have an association with Toras Kohanim, inasmuch as the Kohanim are the ones who sanctify the Sh'mitah and the Yovel years, and they are the ones who would blow the Shofar to announce the advent of the Yovel year; not to speak of the Dinim of Erchin and Charamim, which appear in Bechukosai, and which belong to the domain of the Kohanim. That is why the Torah inserts Behar and Bechukosai in Seifer Toras Kohanim (i.e. Vayikra).

Nevertheless, to avoid the misconception that they were said in the Ohel Mo'ed, the Torah informs us that they were said at Har Sinai.

The Ramban writes further that (despite the fact that, according to what we just explained, Behar and Bechukosai, which preceded the Ohel Mo'ed, seem to be written out of context) all the Parshiyos are written in the order in which Moshe taught them to K'lal Yisrael. How is that possible?

Moshe was actually commanded about the Korbanos, the Mishkan and the Sh'mitah, he explains, when he was given the first Luchos. But when Yisrael sinned at the Eigel ha'Zahav, he thought that all the commandments were automatically annulled, so he smashed the Luchos. But when G-d made up with B'nei Yisrael and forgave them, Moshe, on his own initiative, commanded Yisrael to construct the Mishkan. Once the Mishkan was built, he had no option but to command them about the Korbanos, which they were now obligated to bring to the entrance of the Ohel Mo'ed. Following that, he instructed them the mitzvah of Sh'mitah, which he had been taught at Har Sinai.

"I am Hashem your G-d, who took you out of the land of Egypt to give you the land of Cana'an, to be for you a G-d" (25:38).

The Rosh cites the Gemara in Kesubos (110b), which derives from here that it is only in Eretz Yisrael that Hashem is actively our G-d, but not in Chutz la'Aretz. Therefore the Gemara rules that it is preferable to live in a gentile town in Eretz Yisrael than in a Jewish one in Chutz la'Aretz, because 'anyone who lives in Chutz la'Aretz is considered as if he did not have a G-d, for so the Torah writes here " ... to give you the land of Cana'an, to be for you a G-d".

"And five of you will pursue a hundred, whereas a hundred of you will pursue ten thousand" (26:8).

The numbers don't tally, asks Rashi? Five to a hundred is the equivalent of a hundred to two thousand (not ten)? And he explains that one cannot compare a few who perform Mitzvos to many who do so. In other words, the more people who indulge in Mitzvos together, the more merits they earn themselves. Hence, if five Jews are able to vanquish a hundred of their enemy, then a hundred will be able to overcome as many as ten thousand. The Da'as Zekeinim M.T. answers in similar vein, only he ascribes the increase to the prayers of many (as opposed to the merits).

The Rosh however, quoting Rabeinu Tam, explains that 'a hundred of you' means 'a hundred groups of five' (mentioned in the previous phrase), in which case it will be five hundred (not just one) who will pursue two thousand, the same twenty to one as five to a hundred.

Another problem, asks the Rosh, is that here by the measure of good, the proportion is five to a hundred, whilst in Ha'azinu, where the Torah refers to the measure of punishment (our enemies pursuing us), the Torah writes "How one will pursue a thousand, and two, will cause ten thousand to flee!"

The discrepancy is particularly disturbing bearing in mind the principle that Hashem's measure of good is five hundred times greater than His measure of punishment, whilst here, if anything, the reverse seems to be true?

And he answers that in our Parshah the Torah adds "and your enemy will fall before you by the sword", whereas in Ha'azinu, it makes no mention of your falling before the enemy, only that they will chase you. What therefore emerges is that irrespective of numbers, when you chase your enemies, you will kill them, whereas when they will chase you, they will not be able to kill you.

The Rosh also cites the Ramban, who establishes the Pasuk in Ha'azinu with regard to Yisrael chasing their enemies, and it refers to the earlier Pasuk there "If only they (the enemy) would have been wise and understood their end! How one of them (of Yisrael) could chase a thousand - (a reference to Shimshon, who killed a thousand men with the jawbone of a donkey), and two, ten thousand (a reference to Yonasan [son of Shaul ha'Melech] and his armour-bearer, who killed ten thousand of the P'lishtim), if their Rock had not sold them ... ."

The Pasuk in Ha'azinu refers to one pursuing a thousand and two pursuing ten thousand.

This poses a Kashya on Rabeinu Tam, whom we cited earlier, since it is clear that a larger army can, and does, rout a larger proportion of the enemy. And if the Pasuk is referring to punishment, as per the first interpretation, then it presents a kashya on Rashi and Tosfos, too, since the greater victory is not likely to be the result of the merits of the community (as Rashi explains), nor of their prayers (like Rabeinu Tam). It would therefore appear to be a natural phenomenon that the number of enemies routed grows proportionately with the size of the victorious army, though it is undoubtedly true that in addition, the larger the congregation, the more the merits, and the more effective their Tefilos will be (like Rashi and Rabeinu Tam).

And that is perhaps what the Rosh hints at when in conclusion, he observes that the proportional increase in the two Parshiyos is the same. In each case, the second number is a five-fold increase over the first one.

It is forbidden to swap a Hekdesh animal (that one designated for the Mizbei'ach) for a Chulin one. One is obligated to bring the animal that one declared Hekdesh, and no other animal as a Temurah in its place, as the Torah writes in Bechukosai (27:10) "He shall not exchange it or swap it ".

The moment someone declares that 'this animal is instead of that one', or 'in exchange for that one' or any other similar expression, he is subject to (two) Malkos, even though he has not performed any action. And this applies even if there was an element of Shogeg in what one did - for example, if one declared an animal a Temurah of one's 'Shelamim', when he meant to say 'Olah', since he was after all, a Meizid on the Temurah.

If however, one declared an animal a Temurah, believing that it was permitted, he will not receive Malkos, because he is Shogeg, and not Meizid, besides the fact that Meizid requires witnesses and warning.

You may well ask why Temurah is subject to Malkos at all, seeing as it is a La'av that is connected to an Asei (i.e. having contravened the La'av and declared a Temurah then "it and its Temurah shall be Kodesh")?

The Gemara in Temurah however (4b) explains that in fact, Temurah incorporates two La'avin, and whereas one Asei can override one La'av, it cannot override two.

And besides, say the Chachamim, the Asei of Temurah is not on a par with the Lo Sa'aseh, since it does not pertain to a community or to partners, even though the La'av (of not declaring a Temurah), does.

Chazal have also taught us that with regard to the principle that there is no Malkos for a La'av which does not entail a positive act, there are three exceptions: Nishba (someone who swears falsely), Meimir (someone who declares a Temurah) and Mekalel es chaveiro ba'Sheim (someone who curses a fellow Jew using the Name of G-d), with regard to each of which the Torah is particularly stringent. Added to these three, Chazal also include Motzi-Shem-Ra and Eidim Zomemin. And the reason for Malkos in all of these cases is, either because the Torah expressly mentions Malkos in connection with them, or because we learn it from an extra Pasuk, or because the words result in an act (i.e. they attain an objective that can be compared to an act). Temurah, which causes Hekdesh to take effect and creates the Isur Me'ilah for someone who benefits from it, belongs to the last category.

We will discuss a reason for this Mitzvah in the next Mitzvah (352).

This Isur applies everywhere and at all times, to men and women alike, since even nowadays, someone who transgresses and after sanctifying an animal for the Mizbei'ach, declares a Temurah, in front of witnesses who warn him of the consequences, is subject to two sets of Malkos.

If someone did declare a second animal Hekdesh in place of his Hekdesh animal, then both it and the original animal end up being Hekdesh, as the Pasuk writes in Bechukosai (27:10) " ... then it and its Temurah shall be Kodesh". This Pasuk is a Mitzvas Asei (not just a statement of fact), a command to acknowledge that both animals are in fact, Hekdesh, and to treat them accordingly, as we see from the Gemara in Temurah (4b), which clearly refers to the Asei of Temurah, when it rules that 'One Asei does not have the power to override two La'avin'.

A reason for the mitzvah is that G-d wanted to instill the deep respect of all aspects of Hekdesh into the hearts of the people (as the author explained with regard to the Mitzvah of the Building the Beis Hamikdash, in Parshas Terumah). And it is in order to reinforce that fear, that the Torah warns us not to substitute anything that is Hekdesh for something else. Once an animal becomes Hekdesh, it retains its sanctity forever. Nor should one for one moment imagine, that one can swap that sanctity at will.

Consequently, should one attempt to do so, not only will his attempt at interfering with that which is holy, fail, but it actually achieves the opposite of what he intended; he tried to remove the Kedushah of a sacred animal, and he ends up having created more Kedushah than there was before.

The Rambam in fact, gives a similar explanation. He compares Temurah to someone who comes to redeem the Hekdesh that he declared, whom the Torah requires to add a fifth on to the price. The reason for that, he maintains, is because the Torah understands that most people are out to increase their assets, in which case it seems likely that the Noder who declared his property Hekdesh (Bedek ha'Bayis), has changed his mind, and now hopes to redeem it at a profit. So the Torah decrees that not only will he not gain at Hekdesh's expense, but he will even have to pay an additional fee to redeem it.

Similarly here, the chances are that the owner is probably trying to declare an inferior animal Temurah, in order to retrieve the better quality animal that he declared Hekdesh. The Torah forbids it anyway, because even if today one's intention is to exchange an inferior animal for a superior one, tomorrow, he will exchange a superior one for an inferior one.

And the Rambam adds that even though the statutes of the Torah are Divine Decrees, one should nevertheless reflect their deeper meaning, and wherever one is able to offer a reason for the Mitzvah, one should.

This Rambam, the Seifer ha'Chinuch concludes, is a support for his own custom of including reasons for the Mitzvos in his work.

(To be continued)