35a: Negative Mitzvot

Over the past few weeks we have discussed the issue of mitzvot asei she-hazzeman geraman, time-bound positive mitzvot, from which women, as a rule, are exempt. We will resume that general topic this week.

The original rule taught in our mishna (29a) regarding women is that they are exempt from time-bound positive mitzvot, and obligated in all other positive mitzvot as well as all negative mitzvot (prohibitions). The gemara has already examined at length the source for the distinction between positive mitzvot that are time-bound and those that are not. The gemara now moves on to prove that this distinction does not apply to negative mitzvot. We begin with the two-dots about three quarters of the way down the page on 35a.

The first verse quoted by the gemara is from Bamidbar (5:6), which introduces one of the passages regarding guilt-offerings (ashamot) by explicitly stating that it applies to both men and women. The context of this verse is the case of one who steals from another person and denies having done so, swearing falsely that his is innocent. However, since the Torah introduces this section by referring to "all the sins of man," the clear implication is that just as women are included in the punishment for this infraction, they are subject to all punishments spelled out in the Torah. Since standard negative commandments carry with them a punishment of lashes, it follows that women, as a rule, are included in all negative commandments.

On a related note, the gemara includes a teaching by the academy of Rabbi Eliezer. The verse (Shemot 21:1) that introduces the Torah's main discussion of monetary law begins by stating: "These are the statutes that you shall place before them." The inclusive and ambiguous phrase "before them," implies that the statutes apply to the entire nation. Thus, monetary law applies equally to men and women.

The Academy of Chizkiyya introduces a similar ruling with regard to the laws of an ox that gores a person to death. The pasuk refers to an ox that kills a "man or a woman" (Shemot 21:29); thus, these laws apply equally to both genders.

The gemara continues by explaining why it is necessary to have an independent source in each of these areas to teach that we do not differentiate between men and women. We are five lines from the end of 35a.

The gemara begins by explaining why it would not have been enough to teach us that women are included in all negative commandments in the Torah. Punishments in the Torah are not meant simply to avenge the injustice of a particular violation that one has perpetrated; punishment, together with repentance, attains forgiveness for the sinner. Thus, one might have thought that the fact that negative commandments apply to women just as they apply to men does not imply that all of the Torah's laws necessarily apply to women (the Torah does, after all, generally employ the second-person masculine form in its imperatives to the Jewish people); rather, God wanted to specifically extend to women the laws regarding punishment at the hands of a Jewish court so that they would also be able to attain forgiveness for their sins. Monetary law, however, which is particularly relevant for men, who generally have greater involvement in business, may not apply to women. Thus, the Torah had to teach us that monetary law applies to women as well.

Similarly, if the Torah had taught us only that women are included in the area of monetary law, we would not have been able to conclusively infer that they are included in all other areas. Perhaps women had to be included in monetary law so as to ensure their ability to survive in society; if their property and rights were not protected and they were not prohibited from infringing upon the property and rights of others, a chaotic situation would ensue which would not only endanger women but could lead to the downfall of structured society as a whole. Thus, the necessity of including women in monetary law does not extend to other areas of Torah law, and one might have thought that they are not included in the law of kofer (redemption). Kofer is the payment that applies when an ox that has a history of goring people gores someone to death; the owner of the ox must make the kofer payment as a symbolic redemption for himself (Shemot 21:29-31), as pure justice would dictate that he should be put to death due to his negligence, which has led to the death of another person. One might have thought that the kofer payment and other such rules apply only to men, who are obligated in all categories of mitzvot, and not to women; therefore, the Torah had to state that this area applies to women as well.

Finally, if the Torah had mentioned that women are included in the laws regarding when someone's animal kills someone else, such as kofer, we could not have inferred that they are obligated in all other areas; perhaps the Torah included them in this area because of the tragedy of loss of human life, and their inclusion is specific to this area. Therefore, the Torah had to explicitly include women in all of these areas.

Now that the gemara has clarified the sources for women's obligations in all negative commandments, and their inclusion in positive mitzvot only when they are not time-bound, it is important to note that there is a debate regarding the definition of the categories of positive and negative mitzvot in this context. Generally, commandments that are expressed in the affirmative are considered mitzvot asei (positive commands), while those expressed as warnings are considered lo ta'asei (negative commands). However, some commentators (for example, Penei Yehoshua, Beitza 30a) suggest that in this context, the determining factor should be whether the mitzva requires action, in which case it should be defined as a mitzvat asei, or is passive, in which case it is a mitzvat lo ta'asei. Those two definitions generally coincide, but this is not always the case. For example, there is a mitzvat asei of resting on Shabbat and Festivals, which essentially means to refrain from forbidden activity. The mitzva is phrased as an imperative, but requires no specific action. Similarly, the mitzva of removing chametz (leaven) from one's possession before Pesach (Shemot 12:15) is understood by some commentators as a passive mitzva, to enter the time period in which chametz is prohibited without any chametz in one's possesion, rather than as an active mitzva of destroying chametz (see Minchat Chinukh, mitzva 9, for a discussion of this issue); if this definition is accepted, our discussion would determine whether women are included in the mitzva. (It should be noted that either way, it is forbidden for women to do melacha on Shabbat or Festivals, or to own chametz on Pesach, due to the negative mitzvot associated with such activities; nevertheless, there are some practical ramifications to the question of whether they are included only in the negative mitzva or in the positive one as well.)

Some commentators claim (e.g., Ketav Sofer, OC 56) that this issue may be connected with the basic question of why it is that women are exempt from mitzvot asei she-hazzeman geraman to begin with. Avudarham (Rav David ben Yosef Avudarham, a 14th century Spanish scholar) explains that women are specifically responsible for the running of a household and for attending to the needs of their husbands, obligations that can, at times, come into conflict with mitzvot that are time-oriented. In order to eliminate such a possibility, and thereby safeguard domestic tranquility, the Torah exempts women from mitzvot asei she-hazzeman geraman. If this is the case, it makes sense to assume that only active mitzvot are included in this dispensation. If this is not the reason for women's exemption, it would be reasonable to apply the standard categories of mitzvot asei and mitzvot lo ta'asei.

There is another important discussion that pertains to the definition of mitzvot asei she-hazzeman geraman. Does "time-bound" refer only to a situation in which time defines the obligation of the mitzva, or also to a mitzva which for technical reasons can only be fulfilled at certain times? Everyone would agree that making a berakha on thunder or lightening is not time-bound, as it can happen at any time; what about the special berakha made upon seeing the new moon, which happens to only occur, by definition, only in the first half of a lunar month? Posekim debate whether or not women are obligated in this berakha (see Magen Avraham and Chokhmat Shelomo to Shulchan Arukh OC 426:1; practically, women generally do not say this berakha - see Magen Avraham ibid. in the name of the Shelah). Similarly, there is a berakha called birkat ha-chamma that is made every 28 years (the next time being 8 April, 2009), when the sun returns to the position it was (relative to the revolution and rotational cycles of the earth) at the time of its creation. This berakha, too, is not inherently bound by time but by the occurrence of a particular natural phenomenon, much like thunder and lightening; however, it happens to occur only at specific intervals. This issue, too, is the subject of debate.

This week's shiur is our last one before Pesach. Although it is a busy time, it would be very worthwhile to take the opportunity to review some of the gemarot and shiurim that we have studied together this year. Besides the obvious benefits of review regarding retaining information, reviewing familiar Talmudic texts is a critical exercise if one endeavors to improve one's textual skills and become able to study Talmudic texts independently. 

Best wishes for a happy, healthy and meaningful Pesach.

Michael Siev