Vol. 13   No. 46

Parshas Ki-Seitzei

After obligating the creditor to return a Mashkon (security) of a night garment each night at sunset (in Mishpatim, it issues the same obligation with regard to returning a day garment each day before dawn-break) the Torah refers to this obligation as 'Tzedakah'. At first glance this seems difficult to understand. If Reuven gives Shimon what is already his, why should this fall under the category of Tzedakah? Surely, Tzedakah by definition is giving away something that belongs to the donor, not to the recipient?

The Gemara in Bava Metzi'a (82a) therefore cites R. Yitzchak, who maintains that the creditor actually acquires the Mashkon that he receives from the debtor, since it was given to him with a view of claiming his loan from it. Consequently, when he returns it each night, he is indeed performing a charitable act.

The Gemara there also establishes this ruling specifically with regard to a Mashkon that the Beis-Din claims from the debtor after the date of payment expires and he refuses to repay his loan. The creditor does not however, acquire a Mashkon that the debtor gives him at the time of the loan (seeing as he receives it exclusively as a security).

The Torah Temimah citing the Ra'avad, explains the Halachic ramifications of the distinction in the following way. In the former case, he explains, the creditor has the status of a borrower, who is liable to pay for Onsin (accidents, e.g. death, or theft at the hand of armed robbers). In the latter case, on the other hand, he only has the obligations of a Shomer Sochor, who swears and is exempt from paying for Onsin, and is only liable to pay for theft and loss.

The Rambam and the Ge'onim, he explains, disagree with the Ra'avad. They maintain that according to R. Yitzchak, the creditor only acquires the Mashkon to the extent that he is liable for theft and loss (like a Shomer Sochor). In that case however, the difference between a Mashkon that the creditor receives at the time of the loan and one that he receives later is not so clear. Rashi concurs with the explanation of the Ra'avad, Tosfos with that of the Rambam.

The K'li Yakar adds that according to Rebbi Yitzchak, should the owner die, his heirs will not inherit the Mashkon. But if, as the Rishonim explain, the creditor merely becomes a Shomer, then there is no reason why they should not.

The K'li Yakar also explains the Pasuk be'Derech Remez (by way of hint) like this.

Interpreting the Torah's reference to 'sunset' as death, he explains that it is referring to those people who instruct their heirs to return the Mashkonos that they still have in their possession, after their death. And that is what the Torah is warning against here, since if that is what happens, they no longer fulfill the Mitzvah, and for three good reasons. Firstly, he says, once they have died, the money is no longer theirs. Secondly, once a person dies, he forfeits the obligation to perform Mitzvos, and thirdly, because Tzedakah is only applicable if one foregoes one's own need for the money in favour of that of the poor; and since dead men have no need of the money, Tzedakah does not apply to them.

For all of these reasons, the Torah warns the creditor to return the Mashkon before the sun sets, before he dies. And it stresses this with the words "And it shall be an act of Tzedakah for you", because once you die, the Tzedakah passes on to your heirs.

And it is in this vein that the K'li Yakar also cites the Gemara in Bava Basra (11b) which relates the story of Munbaz ha'Melech, who opened his own treasuries and those of his ancestors, squandering the vast fortunes that they had amassed, to feed the hungry in time of drought. And when his brothers and family confronted him for doing so, he quoted this Pasuk "and the Tzedakah shall be for you", and retorted that whilst his ancestors had amassed wealth on behalf of others, he had amassed wealth on behalf of himself; and whereas they had amassed wealth in a place where it could be plundered, he had amassed it in a place where nobody had access to it. To be sure, says the K'li Yakar, the two statements are one and the same, because Tzedakah that is stored away before G-d remains the donor's forever, for who can possibly take it away from him?

Finally, the Medrash Tanchuma reinforces the Mitzvah under discussion with the words of Hashem Himself, who reminds us how heavily indebted we are to Him. 'You sin before Me constantly', He claims, 'and I wait for you to repent. Each night your Souls are returned to Me. Yesterday, they gave Din ve'Cheshbon before Me, and were declared guilty. Yet in the morning, I return them to you, in spite of that'.

Therefore, the Medrash concludes, Hashem expects us to treat our debtors in the same way, and to return their Mashkon each evening, turning a blind eye to their heavy debts. If we do, the Medrash promises, then we can be sure that G-d will continue to give us the same treatment. If we don't, we should not be surprised if He takes His cue from us, and decides not to return His Mashkon!

Seeing Double

"Only the son of the hated wife he shall acknowledge, to give him a double portion of all that he owns" (21:17).

This Din is clearly hinted in the word "B'chor" As is well-known, the twenty-two letters of the 'Alef-Beis' (which all have numerical equivalents), are divided into three, 'Alef' till 'Tes' (the units), 'Yud' till 'Tzadei'(the tens) and 'Kuf' till 'Tav'(the hundreds).

That being the case, the 'Beis' of B'chor represents the units, the 'Chaf', the tens, and the 'Reish', the hundreds. Notice how the 'Beis' is double the 'Alef' (the smallest unit), the 'Chaf' is double the 'Yud' (the smallest of the tens), and the 'Reish' is double the 'Kuf' (the smallest of the hundreds) - P'ninim mi'Shulchan ha'G'ro.

Incidently, in case you wondered as to why the word "B'chor" is missing a 'Vav', now you know.

"Do not pervert the judgement of a convert or of an orphan ... and you shall remember that you were slaves in Egypt" (24:16/17).

A few Pesukim later (20-22), the Torah uses an identical expression, only there it adds " ... in the land of Egypt". Citing his Talmid, R. Sender Sharfstein, R. Yosef Shaul Natanson explains that here, where the Torah is speaking about a personal Mitzvah, the Torah makes do with mentioning Egypt. Whereas later, where the Pasuk is speaking about Mitzvos connected with the land (to do with olive-trees and vineyards), it makes a point of mentioning the land.

"And they shall declare the righteous one righteous, and the wicked one wicked" (25:1).

When a Tzadik leaves Beis-Din, he generally accepts the ruling of the judges, even if it goes against him, rendering him a bigger Tzadik than he was previously. The Rasha on the other hand, will never concede that he is in the wrong. Consequently, when he leaves Beis-Din, after hearing Beis-Din's ruling in favour of his opponent, he pours scorn on the 'incompetent judges', making him a bigger Rasha than he was before.

And that, says R. Moshe Cheifetz, is what the Pasuk is hinting at here, as it can also be translated as "And they shall declare the righteous one even more righteous, and the wicked one even more wicked.

"Do not add (lashes) ... lest he adds ... and your brother shall be innocent in your eyes" (25:3).

Commenting on this Pasuk, Chazal explain that once a Jew has received his lashes, he becomes your brother once again and he must be considered innocent in your eyes, as if he had not sinned.

Perhaps, R. Yosef Shaul Natanson suggests, one can also explain it like this ...

When a father strikes his son (as he sometimes needs to do), he does so, not out of hatred, but out of love. And so it is with Beis-Din giving a sinner lashes. One assumes that the Sheli'ach Beis-Din who delivers the lashes loves his fellow-Jew, and strikes him in order to rectify his sin. Should he however, add to the required thirty-nine strokes one or two of his own, this is a sign that far from loving him, he despises him.

That is what the Torah means when it writes "lest he adds ... because your brother is despised in your eyes". If the lasher adds lashes of his own, it is sure a sign that he holds him in contempt.

"E'ven Sh'leimah vo'Tzedek ... (you shall possess perfect and righteous weights ... [25:15]) ".

Some years ago, we quoted the P'ninim mi'Shulchan ha'G'ro, who citing the G'ro himself, pointed out that his own name was hinted in the words "E'ven Sh'leimah", which are the acronym of 'Eliyahu ben Sh'lomoh'.

The G'ro actually goes on to explain why it is that his name is represented by an Alef, and is not written out in full. It is because the word 'Alef' backwards spells 'Pele', which means 'wondrous' or' hidden' (in the sense that it is beyond man's comprehension), a description which fits the Torah of the G'ro, which is certainly wondrous (though he did not say that) and hidden from us. As is well-known, the Torah of the G'ro is exceptionally concise. To paraphrase it colloquially 'For every Tefach that he revealed, he covered two'. (P'ninim mi'Shulchan ha'G'ro)

" ... her Yavam shall have relations with her, and take her for himself as a wife ... and his name shall not be blotted out from Yisrael" (25:5/6).

A Chasid was once speaking about a certain miyn (heretic) in the presence of the Sochatchover Gaon, when he added the words 'yimach sh'mo' (may his name be blotted out).

'Yimach sh'mo', the Gaon mimicked! 'The Yerushalmi rules that when a mumar (someone who has rejected the Torah) dies, his wife requires Chalitzah. Now Chalitzah is in place of Yibum, which is intended to establish the name of the deceased, so that his name should not be blotted out. So how can you say "yimach sh'mo" '?

The Sochatchover Ga'on's objection is extremely difficult to understand however, firstly because according to him, why should the Mumar's wife then not be subject to Yibum?

And secondly, because upon performing Chalitzah, the woman declares 'So shall be done to the man who refuses to build his brother's house!' Surely this implies that Chalitzah, far from supplementing Yibum, is its antithesis, which fails to achieve the continuity that Yibum would have achieved.

In any event, how can severing relations with one's brother's wife be in any way synonymous with maintaining his brother's name?

"My Yavam refuses to establish his brother's name!" (25:7).

And what does the Yavam reply? "I do not want to marry her!"

She has accused him of betraying her deceased husband. He, in self-defense, counters that his reason for refusing is entirely personal. It is because he doesn't fancy her (R. David Meir Parush from Levov).

It is forbidden to sell a woman captured in war, after her captor has been intimate with her once. As the Torah writes in Ki Seitzei (21:14) "And it shall be, if you no longer want her, then you shall send her away. You may not sell her for money ... ".

A reason for the Mitzvah ... to teach ourselves excellent Midos. The author has already written in many places that our precious Souls are worthy of receiving much good and that they will be the recipients of Hashem's blessings forever. In addition, G-d wants the good of His people, which is why He crowned them with wonderful and precious Midos. Now there can be no doubt that selling a woman after having been intimate with her is something that only the basest person would do. This is really quite obvious and there is nothing more to say about the matter.

The remaining issues concerning a Y'fas To'ar, including some of the relevant Dinim, and the time when the Din of a Y'fas To'ar applies, have all been discussed in the parallel Mitzvas Asei (see Mitzvah 532 and Rambam, Hilchos Melachim chap. 6).

After having had relations with a Y'fas To'ar, her captor is forbidden to force her to work for him, as the Torah writes in Ki Seitzei (21:14) "Do not enslave her after having tormented her".

And this is borne out by the Sifri, who translates "lo sis'amer boh" as 'Do not force her to work'. This means that one is not permitted to use her as a concubine or as a slave to work for him. The Torah is not coming to forbid making her work in the way that a woman works for her husband. It comes to forbid him from turning her into a slave, in the same way as it prohibits him from selling her as a slave, and for the same reason. Indeed, the Torah uses the same expression in connection with the prohibition of selling a fellow-Jew as a slave, where it writes "ve'his'amer bo", which the Gemara in Sanhedrin (85b) interprets as 'bringing him to one's house in order to enslave him'.

The reason for the Mitzvah together with other information, we have already discussed in Mitzvah 532 (the parallel Mitzvas Asei), and we can take it all from there (See Rambam Hilchos Melachim, Chap. 6).

It is forbidden to prevent an animal from eating from the food on which it is working (e.g. if the animal is threshing corn or carrying straw from one place to another), as the Torah writes in Ki-Seitzei (25:4) "Do not muzzle an ox whilst it is threshing".

A reason for the Mitzvah is ... to train ourselves refinement of character, to do what is right and to pursue kindness and pity. And once we have trained ourselves to behave in such a way even with animals (which, after all, are merely created to serve us, to take pity on them and to give them a portion of their toil), we will learn from there to be good and kind to people too, not to deprive them of anything to which they are entitled. We will make sure to repay them for all the good that they do and see that they benefit amply from their hard work. This is the sort of behaviour that one expects from the holy, chosen nation.

Some of the Dinim of the Mitzvah ... The Gemara in Bava Metzi'a (89a) confines the La'av to an animal that is working with food that grows from the ground (irrespective of whether it is currently attached or detached ... it pertains to all animals (both Kasher and non-Kasher), and is not confined specifically to oxen; nor does it make any difference whether the animal is threshing or performing any other kind of work, provided the food with which it is working grew from the ground. The Torah only refers to an ox when it is threshing, because it is common ... Muzzling a human worker is not included in the Isur ... One is Chayav whether one muzzles the ox before it begins to work or whether one did so only after it has begun working ... The Din of muzzling an ox belonging to a gentile, or if one asks a gentile to muzzle an ox belonging to a Jew and to thresh with it, and the Din of muzzling an ox because it is bad for its stomach or of cows that walk on produce, together with other details (are discussed in the seventh chapter of Bava Metzi'a; see also Choshen Mishpat, Si'man 338). This Isur applies everywhere and at all times to men and women alike. Someone who contravenes it and muzzles his ox and threshes with it is subject to Malkos, even if he only muzzles it verbally (e.g. if he prevents the animal from eating by shouting at it); because in this case (exclusively), we consider the moving of one's lips to be a full-scale act for which one receives Malkos, as it would seem from the Gemara in Sanhedrin (though it is unclear why this is so here more than anywhere else). Somebody who hires an animal and muzzles it whilst working with it, besides being Chayav Chayav Malkos, he also remains obligated to pay the ox's owner four Kabin with which to feed a cow (and three if it is a donkey).