Vol. 15   No. 50

Parshas Ki Seitzei

The Mitzvah of Yibum, Rabeinu Bachye explains, is based on the fact that, if the deceased man's brother does not marry his widow and take over his property, then somebody else will. And the Torah assesses that the deceased, who has left no children to stand in his place, would certainly prefer that his brother play that role than a stranger.

Whereas the Mitzvah of Chalitzah is based on the fact that when a brother performs Yibum, any children that his wife now bears from him are considered his brother's children, and it is as if his brother was still alive. Therefore, when he declines to do so, it appears as if his brother has died, in which case, he is obliged to mourn for him. And that explains why the Yevamah has to remove his shoe, since the removal of shoes is an act of mourning.

As for the spitting ceremony, R. Bachye cites the Medrash Tanchuma, which lists among the Torah's Chukim (Mitzvos whose reasons we do not understand) 'the spittle of a Yevamah'. We will present the entire list later.

According to Kabalah, Rabeinu Bachye explains, the Mitzvah of Yibum directly benefits the deceased, inasmuch as his Soul will enter the body of the first child that is born (hence the Torah writes "And the first-born to whom she will give birth will arise on the name of his deceased brother", even though this is not the Halachic interpretation of the Pasuk). And it is obvious that the Soul will feel more comfortable if it is reincarnated in a body belonging to its original family than in the body of a stranger with whom it was not previously acquainted (which explains why the obligation of Yibum does not pertain to a brother who is born only after the husband died).

And by the same token, the key to Chalitzah lies in the words "ve'choltzoh na'alo" (and she shall remove his shoe). On the one hand "ve'choltzoh" reminds him that, by refusing to fulfill the Mitzvah of Yibum and to perform this great kindness to his deceased brother, he removed himself from the brotherly love that his brother desperately needed; whereas on the other, "Na'alo" (whose root 'Na'al' also means to close reminds him that he has closed the door before his brother's Soul, denying it the chance to return to this earth, and his brother the opportunity to continue living. And what's more, he adds, that inasmuch as it is the foot that causes forward movement, by declining to perform Yibum, he deprived his brother of the opportunity of moving forward.

And the Yevamah spitting in the direction of the Yavam serves as a reminder of the semen (which it resembles and) which would have formed the baby which in turn, would have enabled the Soul of the deceased to be reincarnated. That is why she must spit before she has eaten, so that the spittle comes from the moisture of the body (just like the substance in question) and not from the food that she ate. And the fact that she spits at him in such a despicable way, reflects the despicable manner in which he treated his deceased brother. And that is also why he deserves to be publicly denigrated, by receiving the title 'Beis Chalutz ha'Na'al!'

Rabeinu Bachye, quoting Pesukim, stresses the tremendous Chesed in the entire concept of Gilgul ha'Neshamos (reincarnation) of which Yibum is a branch. It means that even though somebody has left this world unworthy of receiving the portion in the World to Come to which every Jew is initially entitled, he is given another chance to make good and to earn it in spite of his initial failure to do so. And in similar vein, that is what happens when a man performs Yibum with the wife of his deceased brother, who left this earth without heirs, completely severing his ties with this world (and any chance of making good his sins), and it is the Mitzvah of Yibum that renews his connections and grants him new life.

This also conveys to us a deeper understanding, on the one hand, of the extent of the Chesed that a brother performs when he carries out the Mitzvah of Yibum; and on the other, the acute suffering that he causes by refusing to do it.

We cited earlier the Medrash Tanchuma, who lists the spit of the Yevamah among the Chukim. Here is the comprehensive list of eleven Chukim that the Medrash presents: Sha'atnez, Basar Chazir, the spit of a Yevamah, mixing Kil'ayim, an ox that has to be stoned (for having killed a person), an Eglah Arufah, the birds of a Metzora, a Peter Chamor (the lamb that is given to a Kohen in lieu of a first-born donkey), Basar be'Chalav, the Sa'ir ha'Mishtalei'ach (on Yom Kipur) and the Parah Adumah.

"When you go to war … and you capture his captive" (21:10).

Rashi comments that the Pasuk is speaking about going to fight a Milchemes R'shus (i.e. against any nation other than the seven Cana'ani nations or Amalek), and that it comes to include a Cana'ani, (even though, one is obligated to kill any Cana'ni that one captures directly from them).

The Da'as Zekeinim M.T explains that Rashi learns this from the Torah's words "ve'shoviso shevyo", which means literally 'and you capture his captive (i.e. the captive that the enemy captured from the Cana'anim).

"When a man has two wives, one whom he loves and one, whom he hates … " (21:15).

The juxtaposition of the Parshiyos teaches us, says the Da'as Zekeinim M.T., how one sin leads to another ('Aveirah Goreres Aveirah').

The soldier set the ball rolling by marrying a Y'fas To'ar (something which the Torah frowns upon) … then he is landed with two quarreling wives on his hands, and what's more, he finds himself hating one of them …next he has a son who rebels against his own father and mother (like we find with David Hamelech, who married the daughter of Talmai, King of G'shur [a Y'fas To'ar], who bore him Avshalom, who led a rebellion against him and committed adultery with his father's wives and who subsequently brought about the deaths of many tens of thousands of Yisrael) …and finally he will be found guilty of a sin which carries with it the death penalty.

"When you come across a bird's nest … : (22:6).

From the juxtaposition of the various Pesukim we can learn that just as one sin leads to another, so too, does one Mitzvah lead to another.

That explains why the Mitzvah of Shilu'ach ha'Kan is followed by that of long life, a new house (together with the Mitzvah of building a Ma'akeh [a parapet]) …a vineyard (together with the Mitzvah of not planting Kil'ayim) … oxen and donkeys (and the opportunity of not ploughing with them together) … new clothes (and the Mitzvos of Sha'atnez and Tzitzis [which is equivalent to all the Mitzvos]).

"And when a man is found lying with a married woman, then also both of them shall die" (22:22).

The word "also", comments Rashi (which always come to include something) includes those who come afterwards.

This refers, says the Da'as Zekeinim M.T., to anyone who commits adultery with her after she has been sentenced to death. He too, is subject to the death-penalty. We might otherwise have assumed that it is as if the death sentence has already been carried out and the woman is considered as if she was already dead, rendering Patur anyone who commits adultery with her.

"Do not reject an Edumite, because he is your brother" (23:8).

See Rashi.

There are those, says the Da'as Zekeinim M.T., who explain that we ought to reject the Edumites by virtue of the fact that they did not offer us food and drink when we left Egypt.

In that case, they point out, when the Pasuk writes in Devarim (2:29) " … like the B'nei Eisav … did for me … ", this must be referring to granting them permission to pass through their land (with reference to Pasuk 28 [see Rabeinu Bachye there]), and not to offering them food and drink (also mentioned there).

Others however, explain the Pasuk with reference to their refusal to allow Yisrael to pass through their land, in which case, the Pasuk in Devarim must be referring to selling them food and drink (see Rashi there).

"Don't reject an Egyptian, because you were a sojourner in his land" (Ibid.)

Granted that ultimately, they subjugated you, explains the Da'as Zekeinim M.T.; But that was later.

When you first arrived, they allowed to sojourn in their land and treated you well. That is sufficient reason to show your gratitude and not to reject them.

"When a man marries a new wife, he shall not go out to the army, nor shall it obligate him for any matter, he shall be free for his home for one year, and he shall make happy the wife that he married" (24:5).

The Da'as Zekeinim M.T. cites Rashi, who comments "le'Beiso" (for his home) - 'also for his house'; "yih'yeh (he shall be) - 'to include his vineyard'. And he then connects this with the Mishnah in Sotah, which, listing the people who are not conscripted at all, mentions someone who built a new house and consecrated it, someone who planted a vineyard and redeemed it (in the fourth year) and both someone who married his betrothed and someone who married his Yevamah.

All of these do not even have to provide water and food to the soldiers, or to repair the roads (see Parshas Shoftim, Parshah Pearls 'Returning from the Battle Front'). They are exempt from all army service, provided it is a voluntary war, and not a milchemes Mitzvah.

"He shall give him forty lashes … " (25:3).

This corresponds, says the Rosh, to the ten curses that Adam, Chavah, the snake and the earth each received following the first sin. However, the Chachamim subtracted one, due to the continuation of the Pasuk "Do not add … lest he adds" (see Highlights from Targum Yonasan), or because we require a number of lashes that is divisible by three (in order to administer one third in front and two thirds on the back).

'And if your brother is not close to you (because you hate him) or if you do not know who he is, you shall take it (his article that you have found) into your house and feed it … ' (22:2).

'A woman may not wear a garment of Tzitzis or Tefilin, since they are things that are worn by men; nor may a man shave under his arm-pits, his pubic hair or the hair of his face, to resemble a woman … ' (22:5).

'And to the girl you shall not do any harm; the girl does not warrant the death-sentence, only her husband shall give her a Get (see Pirush Yonasan) … ' (22:26).

'And they will decree on her in Heaven that her second husband will hate her, and he shall write her a document of divorce and place it in her possession, or they will decree that the man who married her last shall die' (24:3).

'The former husband who divorced her is not permitted to take her back, now that she has rendered herself impure; since she is an abomination before G-d, though the children that he will father from her are not' (24:4).

'When a man takes a new wife who is a virgin, he shall not join the army … ' (24:5).

'One is forbidden to take a security … nor may he bind Chasanim and Kallos with witchcraft, for by doing so, he destroys the soul(s) that is destined to come from them' (24:6).

'Be careful not to suspect one another in order to avoid punishment; Remember what G-d did to Miriam, who suspected Moshe of something that he did not do, and she was stricken with Tzara'as … ' (24:9).

'Fathers shall not die either via the testimony of, or due to the sins of their children, neither shall children die via the testimony of, or due to the sins of their fathers … ' (24:16).

' … and do not take the garment of a widow (as a security against a loan), so that evil neighbours should not talk and give you a bad name, when you come to return the security to her' (24:17).

'He shall give him forty lashes minus one, he shall not complete the forty, lest he adds to strike him one more than these thirty-nine lashes and his (the sinner's) life is endangered … ' (25:3).

The Rambam writes that if one borrows money against a security, the loan is not released at the end of Sh'mitah, provided the value of the debt is equivalent to that of the security. The Gemara in Bava Metzi'a however, teaches that this ruling applies even if the security is worth only half the debt, though this is confined to a security of Metaltelin (movables), but if the security is Karka (land), then there where it is customary to redeem them for cash, Sh'mitah will still release the debt. In fact, it has the Din of a regular debt, in that a firstborn does not inherit a double portion should the creditor die before it has been claimed. But in a place where the land cannot be redeemed, Sh'mitah will not release the security (and the firstborn will receive a double portion). Now however, that we rule that S'tam security is confined to the maximum of a year, all securities are considered as not being redeemable - in which case, Sh'mitah does not release them and a. the firstborn receives a double portion from it and b. the heir's creditors may claim compensation from it (since it is considered their land).

If someone hands his documents of debt to Beis-Din and asks them to claim his debt on his behalf, Sh'mitah does not release the debts, as the Torah writes in Re'ei (15:3) "And whatever your brother has that belongs to you"; whereas in this case, you have already placed it in the domain of Beis-Din (and it no longer belongs to you). And it is for the same reason that the Gemara in Gitin (37a) rules that any debt belonging to young orphans is not subject to "Lo Yigos" (the prohibition of claiming one's debts after the Sh'mitah); since Raban Gamliel and his Beis-Din automatically considered themselves fathers of all orphans, and all subsequent Batei-Din for all generations followed in their footsteps. Consequently, it is as if the orphans had handed their documents of debt to Beis-Din … If someone lends his friend money for ten years Sh'mitah does not release the debt. This is because the Torah writes "Lo yigos" (Do not claim), implying that it only releases debts that are claimable at the termination of the Sh'mitah-year, but not those whose date expires later …Should the creditor stipulate that he is lending the borrower money on condition that Sh'mitah will not release the debt, Sh'mitah nevertheless releases it, since he has issued a condition that contravened a Torah law, in which case, the condition is not effective. If however, he stipulated that the borrower (rather than Sh'mitah) will not release the debt, then his condition stands. This is due to the principle that a monetary condition always takes effect, as the author explained in Parshas Behar, in the Mitzvah of not lending money on interest (Mitzvah 343) … All other details are discussed in Maseches Shevi'is (Choshen Mishpat 67).

This Mitzvah applies min ha'Torah both in Eretz Yisrael and everywhere else whenever the Yovel applies, to both men and women. The author already clarified in Parshas Behar (Mitzvah 332) exactly when the Mitzvah of Yovel applies. When it does not, the Dinim of Sh'mitah, both as regards the land and as regards loans, do not apply either (min ha'Torah).

Mi'de'Rabbanan however, Sh'mitas K'safim applies even nowadays, and in every location - in order that Yisrael should not forget the concept of Sh'mitas Keasfim completely. The author has already informed us (Ibid., Mitzvah 330), exactly which year the Sh'mitah (in his time) fell, according to the opinion of the leading commentaries of his time who were conversant with Shas.

Someone who contravenes this Mitzvah and who claims from his friend a debt after the termination of the Sh'mitah year, in the time that the Beis-Hamikdash stood, negated this Asei, besides having transgressed the La'av that also appears in this Parshah. Nowadays however, he has merely transgressed an Isur de'Rabbanan. In fact, even nowadays, if Beis-Din are aware that Sh'mitah has negated a debt, they may do nothing to force the debtor to repay it. Even though Shibuda (the obligation to pay a debt) is d'Oraysa, The Chachamim nevertheless have the authority to institute Sh'mitas Kesafim, based on the Halachah that whenever it comes to monetary matters, the Chachamim have the power to override the Din Torah, due to the principle 'Hefker Beis-Din Hefker' (Beis-Din's mandate to declare a person's property Hefker).