Payment for Humiliation (86B-87A) part 2 of 2

  • Rav Shmuel Shimoni

 

 

[Editor’s note: Normally a shiur of this size would be split in two. However, since this is the last shiur before the Pesach break, we did not want to leave our students in suspense. Therefore, please excuse the long length of this shiur.]

 

I. Introduction

 

            Today we will deal with the disagreement between Rabbi Yehuda and the Sages regarding a blind person, and especially with the novel and surprising position of Rabbi Yehuda (which, according to most views, has not been accepted as the final Halakha[1]). One aspect of Rabbi Yehuda's position, that which connects the various parts of our passage, is a blind person's exclusion from the law governing boshet (humiliation). But Rabbi Yehuda's novel position is much more far-reaching: by way of a graded course of derivations he exempts a blind person from the law of exile, judicial execution, flogging, all the judgments in the Torah and all the commandments of the Torah. Even if we assume the position of the majority of the Rishonim, that Rabbi Yehuda excludes a blind person only from obligations, but not from entitlements (and over the course of the shiur we shall relate to the dissenting viewpoint of the Ra'avad), we are dealing with a difficult position, the foundation of which we must try to understand.

 

            Our revered teacher, HaRav Aharon Lichtenstein, shelita, in an article published in 1980,[2] proposed two understandings of the exclusion of a blind person from the mitzvot according to Rabbi Yehuda, which remove it from the category of an arbitrary Scriptural decree. One understanding compares this exemption to other exemptions from mitzvot, which stem from the Torah's desire to be lenient in difficult situations. According to this proposal, just as some have explained the exemption granted to women with respect to time-bound positive commandments in light of the difficulties that they pose for women, so too it is possible to understand that the Torah wished to be lenient with a blind person and therefore exempted him (an exemption that of course is much broader than that granted to a woman). There is a certain difficulty with this proposal, because the exemption from mitzvot granted to a blind person according to Rabbi Yehuda is derived from his exemption from all the judgments of the Torah: "Whoever is not subject to judgments is not subject to the commandments and statutes." Are we to say that because the Torah wished to be lenient with a blind person, it exempted him from all of his obligations in Choshen Mishpat? The matter requires further study.

 

            According to a second understanding, a blind person is likened to a dead person, whose exemption from the mitzvot stems from the fact that he lacks intelligence. HaRav Lichtenstein suggests that according to Rabbi Yehuda's unique position, a blind person as well, at least to a certain degree and in certain contexts, lacks full intelligence, and thus he is exempt from the commandments and from judgments. HaRav Lichtenstein found strong support for this understanding in the words of the Ra'avad on our passage. The Ra'avad relates to Rabbi Yehuda's derivation of a blind person's exclusion from the law of boshet from his exclusion from the law of a false conspiring witness, which he explains as follows:

 

Just as below a blind person is exempt, because he lacks intelligence, so too here a blind person is exempt, and is not subject at all to the law of boshet….[3]

 

            However, despite the many qualifications, and despite the seemingly supportive words of the Ra'avad, in my opinion, it is exceedingly difficult to accept this proposal in its plain sense. The Gemara's assumption in all places is that all people are regarded as intelligent beings, with three exceptions: a deaf person (and only a person who is deaf from birth and also mute; Terumot 1:2), an idiot, and a minor. Are we to say that Rabbi Yehuda adds a fourth member to this familiar trio, and that according to him a blind person is not capable of performing a kinyan? Even if we would be fundamentally ready to accept such a position, and say that since a blind person's perceptions are limited, he is viewed as enjoying less intelligence, would we be ready to say this even about one who is not blind from birth, and extend the law governing a blind person further than the law governing a deaf person (for it is clear from the words of Rabbi Yehuda, as noted by the Tosafot, 87a, s.v. ve-chen, that they apply also to a person who once saw and then was blinded)? Is it possible to say that Rav Yosef, one of the greatest Amoraim and posekim (who was blind with respect to the position of Rabbi Yehuda, as cited at the end of our passage, and the Rishonim write that he blinded himself), was not a person of intelligence? Heaven forbid!

           

            It seems therefore that this proposal must be formulated in a slightly different manner. A blind person is certainly an intelligent being, but he is halakhically defined as one who is not sufficiently connected to the world. Even if we are dealing with a recent loss of vision, the fact that a person is visually cut off from the world leads to Rabbi Yehuda's position that a blind person is not considered for all purposes as a member of human society. Put differently, a blind person is not exempt because of his similarity to an idiot, but rather because of his similarity to a dead person. Surely the Baraita states: "Four are considered as if they are dead: A poor person, a leper, a blind person and one who does not have children… And a blind person, as it is written: 'You have set me in dark places, as those who are long ago dead'" (Eikha 3:6) (Nedarim 64b). Of course, each person on this list must be considered separately, and our present concern is a blind person. To better understand the matter, let us see the words of the Meshekh Chokhma (Shemot 13:8):

 

And in the Gemara (Pesachim 116b): Rabbi Acha ben Yaakov said: A blind person is exempt from reciting the Hagada. It is written here: "Because of this," and it is written elsewhere (Devarim 21:20): "This son of ours." Just like there to the exclusion of a blind person, so too here to the exclusion of a blind person. The matter is astonishing and requires explanation. The explanation seems to be as follows: A blind person who does not see, and the world is dark for him, and he is imprisoned in his darkness, what does he care if he sits in jail, what servitude is he subject to? Was he saved from servitude to Pharaoh and his nation? In what way did he at first serve Pharaoh, and in what way was he set free? He would only have to offer gratitude for what he imagines that his children are free, and that had God not taken them out from Egypt, his children would still be enslaved to Pharaoh in Egypt. He therefore explains that the son of blind parents is not subject to the laws of a rebellious son, for the reason that someone who is blind and is regarded as a dead person and does not delight in the pleasures of creation, and the world around him is a burden for his soul, is not deeply connected to his children, so that if they do not listen to him, he will be angry and he will fear that perhaps the son will go out to depravity. He also regards his children as strangers, he does not take part in their joy, and is not upset about their misery. Therefore [the son] is not subject to the laws of a rebellious son, because a blind person, who is considered like a dead person, no longer reacts to the fact that his son is a glutton and a drunkard. For this reason a blind person is exempt from reciting the Haggada, because for himself he is not required to offer gratitude, and regarding his children, he is not concerned about their welfare or their misfortune. Therefore he is exempt from offering thanks and praise. This is why the Gemara cites the verse "this son of ours," which refers to a rebellious son.

 

            It is not easy for me to read these words concerning the blind, and personally I am inclined to say that there is a significant difference between the situation of blind people today and their situation in ancient times. But in my opinion we have here a foundation on which to build the position of Rabbi Yehuda, who, of course, greatly expands this principle and its ramifications. A person can be the leading authority of his generation, like Rav Sheshet or Rav Yosef, and nevertheless he can be considered in as if he were dead, in the sense that by his very nature he is defined as one who is not sufficiently connected to the world or human society, so much so that in great measure he is not subject to the Torah's judgments and commandments.

 

We will of course return to this issue over the course of this shiur.

 

II. THe Law governing a Blind Person with respect to boshet

 

            Our passage cites three Baraitot, all of which note that Rabbi Yehuda maintains that a blind person is not subject to the law of boshet, and that Rabbi Yehuda exempts a blind person from a broad range of laws. The last clause of each Baraita is based on the last clause of the previous Baraita, while the first clause stands as an independent element, with its own derivation, which is not used for the other laws. The Tosafot (87a, s.v. vekhen) ask: If Rabbi Yehuda derives from the verses that a blind person is exempt from all the judgments in the Torah, there should be no need for a special derivation that exempts him from liability for boshet. The Tosafot answer that indeed Rabbi Yehuda retracted the law cited in the first clause of the Baraitot, or alternatively that the derivation regarding the laws of boshet is what brought him to understand the verses regarding exile (which is the foundation of the series of derivations in the last clause) in the way that he understood them. Either way, we learn that there is room for an independent disagreement between Rabbi Yehuda and the Sages regarding boshet, even though in practice it is swallowed up in their broader disagreement. Let us now see the passage:

 

"One who humiliates a blind person." Our mishna is not in accordance with Rabbi Yehuda. For it was taught [in a Baraita]: "Rabbi Yehuda says: A blind person is not subject to [the law of] boshet…. What is the reason of Rabbi Yehuda? He derives [the law in the case of boshet by way of] a verbal analogy between 'your eyes [mentioned in the case of boshet] and 'your eyes" [mentioned in connection with the case] of witnesses who were proved to be false, conspiring witnesses.

 

            The idea that our mishna contradicts the view of Rabbi Yehuda concerning a blind person was already raised earlier on p. 86a, only that there the Gemara proposed a way to reconcile the words of Rabbi Yehuda with the mishna: "For the statement made by Rabbi Yehuda that a blind person is not subject to the law of boshet means that no payment will be exacted from him [where he humiliated others], whereas when it comes to paying him [for boshet where he was humiliated by others], we would surely order that he be paid." However, the Gemara there rejects this possibility on the grounds that the mishna implies that the law regarding a blind person is the same as the law regarding a seeing person both with respect to entitlement to receive payment for boshet and with respect to liability to pay for boshet. The plain sense of the passage implies that the limitation of Rabbi Yehuda's position to an exemption from liability for boshet remains valid even according to the conclusion. On the other hand, the plain sense of our passage implies that the mishna's ruling that one who humiliates a blind person is liable cannot be reconciled with the position of Rabbi Yehuda. Does Rabbi Yehuda then exclude a blind person even from entitlement to receive payment for the boshet that was caused him? The Rishonim disagree about the matter. According to Rashi (s.v. delo) and according to the Tosafot (s.v. suma), even Rabbi Yehuda agrees that a blind person is entitled to payment for his boshet, whereas according to the Ra'avad (in his novellae, s.v. atya), Rabbi Yehuda excludes a blind person from the entire law of boshet (we will return to this shortly in the framework of the position of the Ra'avad).

 

            Rabbi Yehuda derives the law regarding a blind person with respect to boshet by way of a gezeira shava between two instances of the words "your eyes" from the exclusion of a blind person from the law governing a false conspiring witness, which in itself appears to be universally accepted. It should be noted that the verse in question regarding the laws of "You shall do to him, as he thought to have done to his brother" (Devarim 19:19) is: "And your eye shall not pity, but life for life, eye for eye, tooth for tooth, hand for hand foot for foot" (ibid. v. 21). The passage speaks of a witness who testified that a certain person killed another person or injured him, and therefore the law "as he thought to have done to his brother" states that he should receive the stated punishments, which of course are interpreted as monetary compensation (apart from "life for life"). The gezeira shava from this passage to the law of a person who caused an injury reflects then a topical closeness. Thus, for example, when Rashi on the Talmudic passage explains the blind person's disqualification to offer testimony he deals with testimony regarding a person "who cut off the hand of another person" – a case of injury.

 

It would be interesting to combine this with the Rambam's novel explanation (Hilkhot Chovel u-Mazik 5:7) of the fact that one who admits that he injured another person is liable for boshet, even though that payment is a kenas (penalty): "And with regard to boshet, it was when he admitted before the court that he caused the injury, that he brought about the boshet. For when an injury is caused in private, a person is not caused any boshet. It is his admission before the court that humiliates him." It may perhaps be suggested that the meaning of the gezeira shava is that only one who can take in an event and report about it is regarded as a party that can cause humiliation. Humiliation – as we saw at least according to some positions in the previous shiur – is an interpersonal phenomenon, connected to social communication. One who suffered an injury in private suffers no humiliation, and so too one who was caused an injury by someone who is not part of society suffers no humiliation.

 

            Here we must consider the Tosafot's question (s.v. ma), why is only a blind person excluded from liability for boshet, and not other people who are disqualified from giving testimony, such as a woman or a thief. The Tosafot write that because of the gezeira shava that focuses on eyes, they only excluded one whose disqualification is connected to seeing.[4] It seems to me, however, that we are not dealing only with a technical point – our interest here is not qualification to offer testimony, and therefore there is no reason to exempt a woman or a thief from liability for boshet. A blind's person disqualification to offer testimony – according to one possible understanding – stems precisely from his sensory severance from the world regarding all that is connected to a person's primary sense,[5] and Rabbi Yehuda's novel understanding is that we can learn from this to liability for boshet.

 

            The Rashba's approach (ad loc., s.v. gamar, in his first answer) differs on this point. According to him, the derivation from testimony is not a sign, but rather a reason, and therefore it is possible to learn from it that a slave who caused an injury is exempt from liability for boshet (even after he is emancipated), because he had been disqualified from giving testimony at the time that he caused the injury.[6] It stands to reason that according to this approach there is a strong connection between disqualification to offer testimony and exclusion from liability for boshet. We will return to this idea in the near future in the framework of the passage on p. 88a.

 

III. THe viewpoint of the Ra'avad

 

            The Ra'avad on our passage writes:

 

Just as below a blind person is exempt, as he lacks intelligence, so too here a blind person is exempt, and is not at all subject to the law of boshet, not to pay and not to receive payment.

 

            The Ra'avad explains the exemption granted to a blind person from the law of "as he had thought to have done to him," which presumably is based on his disqualification to give testimony, with the fact that "he lacks intelligence." We already mentioned his position above, and suggested that it cannot be understood in its plain sense, but rather that he maintains that a blind person is not sufficiently connected to human society. In any event, the Ra'avad broadens the application of the law to boshet and asserts – in contrast to the approach of Rashi and Tosafot – that a blind person is excluded from the law of boshet, both as cause of the humiliation and as its victim.

 

            Logically speaking, there would have been room to accept this approach as a unique novelty that excludes a blind person from the law of boshet but is irrelevant to the broader position of Rabbi Yehuda. A blind person's detachment from society removes him from the social phenomenon of boshet, both as its cause and as its victim. Indeed, the Penei Yehoshua (ad loc.) suggests, as opposed to the Tosafot, 87a, s.v. ve-chen, that Rabbi Yehuda has a novel position regarding boshet that goes beyond a blind person's general exclusion from judgments, for in the case of boshet, he is excluded even as a plaintiff, and not only as a defendant.

 

            However, the words of the Ra'avad do not allow for such an understanding, because the Ra'avad continues with a general exclusion from judgments, and proposes an exceedingly novel idea:

 

And so too he is exempted from all judgments in the Torah; he does not judge, nor is he judged, nor is a court obligated to attend to his judgment.

 

            The Ra'avad takes the position of Rabbi Yehuda (which is surprising and difficult enough) to the extreme, and denies a blind person his monetary rights, or at least his right to stand up for them in court. I do not understand the position. It is true that the Rambam writes that "with regard to a deaf-mute and an idiot, we do not concern ourselves with them with regard to any claim, not a claim that they lodged against others, nor a claim that others lodge against them, nor for a lesser oath, and, needless to say, not for a severe oath or to compel them to make financial restitution" (Hilkhot To'en ve-Nit'an 5:12). This is in contrast to a minor, who can lodge a claim against others. Is it really possible to say that a blind person is absolutely lacking in knowledge that we do not concern ourselves at all with his claims? The matter requires further study.

 

iV. THe law governing a blind Person with respect to the commandments

 

So also did Rabbi Yehuda exempt him from all commandments stated in the Torah. Rav Shisha the son of Rav Idi said: What is the reason of Rabbi Yehuda? Because the verse states: "Now these are the commandments, the statutes and the judgments"; whoever is subject to the "judgments" is subject to "commandments" and "statutes," but whoever is not subject to "ordinances" is not subject to "commandments" and "statutes." Rav Yosef said: Formerly I used to say: If someone would tell me that the halakhah is in accordance with Rabbi Yehuda who declared that a blind person is exempt from the commandments, I would make a festive occasion for our Rabbis, because though I am not commanded I still perform commandments, but now that I have heard the statement of Rav Chanina, as Rav Chanina indeed said that greater is the reward of those who being commanded do [good deeds] than of those who without being commanded [but merely of their own free will] do [good deeds], if someone would tell me that the halakhah is not in accordance with Rabbi Yehuda I would make a festive occasion for our Rabbis, because if I am commanded to perform commandments the reward will be greater for me.

 

            The issue connected to Rabbi Yehuda's position that aroused the broadest discussion in the Rishonim and in the Acharonim is the exemption that he grants a blind person from all the mitzvot in the Torah. It is difficult to digest the existence of an intelligent Jewish adult who is exempt from the commandments. Various limitations and qualifications to this exemption have been discussed at a number of different levels.

 

Level I – the scope of the exemption

 

            The Acharonim raise various limitations of the scope of the commandments regarding which a blind person is granted an exemption. Some argue that a blind person is only exempt from positive commandments, but not from prohibitions.[7] From here some continue further and argue that he is also obligated in positive commandments that are compared to prohibitions, such as matza and kiddush.[8]

 

            Other Acharonim (Minchat Chinukh, commandment 2, no. 25, and others) propose that a blind person is only exempt from the commandments given at Sinai, but not from the seven commandments given to the descendants of Noach. According to this approach, it is possible that a blind person's detachment from society makes it impossible for him to have a part in the collective commandment connected to Mount Sinai (we will expand upon this idea at the end of the shiur), but since he has intelligence, there is no reason not to obligate him in the personal commandments given to each and every person in the world.

 

This depends on a very important question, namely, whether or not the seven commandments given to the descendants of Noach have any significance for Jews, for it is clear that even a blind person has the sanctity of a Jew. Since it is unacceptable that an intelligent person, seeing or blind, should be permitted to engage in idolatry, murder, or forbidden sexual relations, it seems that we are forced to accept this distinction, or alternatively, the distinction mentioned in a somewhat controversial work, the Kasa de-Harsena commentary to Responsa Besamim Rosh, no. 73 – which claims that a blind person is obligated in the rational commandments, and is exempt only from the revelational commandments.

 

            We will shortly touch upon another most important limitation in the framework of the third level.

 

Level II – the force of the exemption

 

            The second level arises already in the talmudic passage itself, namely, the force of the exemption granted to a blind person from the commandments according to Rabbi Yehuda. It is clear from the passage that a blind person who chooses to fulfill the commandments has the standing of "one who is not commanded, but nevertheless does them." According to Rav Yosef's initial understanding, we are dealing with a level that is higher than that of "one who is commanded and performs them." But even according to the Gemara's conclusion, we are dealing with an action that has halakhic value. According to Rabbeinu Tam and Ashkenazi halakha, we are dealing with the fulfillment of a mitzva that justifies reciting a blessing that mentions God's name and kingship, "Who has sanctified us in His commandments and commanded us." Rabbeinu Tam learned that this is the law governing a blind person from the law governing women with respect to positive time-bound commandments.[9] Some have greatly broadened the canvas in this context, understanding that even a non-Jew who fulfills a commandment fulfills it at the level of "one who is not commanded, but nevertheless does it."[10] But it would seem that the simpler and more common approach is that this fulfillment is valid only to someone connected to the sanctity owing to which we have been commanded to perform the commandments, i.e., the sanctity of Israel. A blind person, like a woman, is connected to that sanctity, no less than one who is actually commanded to perform the commandments.

 

Level III – The law by Rabbinic decree

 

            The Tosafot in our passage argue that even according to Rabbi Yehuda a blind person is obligated in the commandments by rabbinic decree, the reason being that he should not be like a non-Jew.[11] In this he is different from a woman, whose exemption from positive time-bound commandments remains in force even in accordance with rabbinic law, because she is obligated in the other commandments, and therefore she is not like a non-Jew.

 

[The Rid, in Sefer Ha-Makhri’a, no. 78, formulated the difference between a woman and a blind person in a different and surprising manner. According to him, there would have been room to obligate women by rabbinic decree as well, only that this could not be done because of the prohibition of "bal tosif," the prohibition to add to the commandments of the Torah. He assumes that this prohibition applies to imposing an obligation by rabbinic decree regarding a commandment that the Torah granted an exemption, and that this applies to the individual who performs the commandment, rather than on the court who institutes the obligation. Therefore, he argues, since a blind person, in his opinion, is exempt even from negative commandments, including the prohibition of "bal tosif," there is nothing to prevent us from obligating a blind person by rabbinic decree in the commandments from which he is exempt by Torah law. The Tosafot in Rosh ha-Shana 33a, s.v. ha, proposed a third difference: "The Rabbis were more stringent about a blind person because he is of the same gender as one who is obligated in the commandments"].

 

            What led the Tosafot to their novel position is the passage in Megilla 24a, which states that a blind person cannot recite the blessings before the Shema [perisa al shema], but this is only in the case of a person who was blind from birth, and for a localized reason, since he cannot recite the blessing of "yotzer or," since he never derived any benefit from light. The implication is that as a rule a blind person can discharge an obligation for another person, despite the basic rule found in the mishna in Rosh ha-Shana (29a): "Whoever is not obligated to perform a commandment cannot perform it on behalf of a congregation."

 

The Yerushalmi already had difficulty with Rabbi Yehuda's position in light of his general position according to which a blind person is exempt from the commandments. The Yerushalmi answers that Rabbi Yehuda in Megilla does not come to exclude a blind person, but rather a person who grew up in a dark cave or the like, and never benefited from the light. The Tosafot, however, understand that our Gemara rejects this understanding, and therefore they propose that even according to Rabbi Yehuda a blind person is considered as one who is obligated, this is because he is obligated by rabbinic decree.

 

            The Rashba (ad loc.) disagrees with the Tosafot, and argues that according to Rabbi Yehuda a blind person is exempt from the commandments even by rabbinic decree. He deals with the passage in Megilla as follows:

 

Rather it seems that according to Rabbi Yehuda he is entirely exempt from all the commandments, even by rabbinic law, and it is only as an act of piety that he is obligated…. And reciting the blessings before the Shema, since it is only by rabbinic law, even a blind person who saw light and later became blind, and he comes to say the blessing of Yotzer Or is permitted to do so, and he is pious, since he already derived benefit from the light. And he can even cause others to fulfill their obligation. But someone who never saw light, even if he comes to recite it, there is no act of piety here, since he never experienced the light and never derived benefit. And if it is not even an act of piety, how can he recite the blessings before the Shema to cause others who derived benefit to fulfill their obligation. Rabbi Yehuda treated it like an ordinary blessing of enjoyment.

 

            The Rashba proposes an exceedingly novel position,[12] that regarding rabbinic commandments even one who is not obligated, but performs the commandment as an act of piety, can perform the commandment on behalf of others. How are we to understand this? Surely the bottom line is that he is not obligated! Of course, it is possible that the Rabbis were simply lenient on this specific point with respect to rabbinic commandments, but this is difficult. And furthermore, does the Rashba maintain that even a woman can perform a rabbinic commandment on behalf of a man?

 

            With hesitation, I wish to propose an explanation. the Rashba formulates his position using what seems to be an oxymoron: a blind person is entirely exempt, "and it is only as an act of piety that he is obligated." Is there an obligation here, or is it only an act of piety? It seems that according to this understanding of Rabbi Yehuda, blind people are exempt by strict law from the commandments, but they accepted the commandments upon themselves as an obligation. This is similar to what we find according to certain Rishonim and Acharonim regarding the evening prayer, the tachanun prayer, counting the omer for women, and other matters. It is therefore possible to say that as an act of piety, a blind person is obligated. However, this is not enough to turn a blind person into one who is under obligation, and therefore he is still in the category of one who is not commanded, but nevertheless performs a mitzva. Here we must examine the question why is it necessary that a person be under obligation in order to discharge another person's obligation with respect to commandments involving speech. It seems that this depends on our understanding of the rule that hearing is like speaking, that allows a person to fulfill his obligation through the speech of another person. One understanding is that the person who hears fulfills his obligation with the other person's speech, whether through some type of agency or some other manner. According to this understanding, it is obvious that the speaker must himself be under obligation in the full sense of the term, for it is through the commandment that he fulfills that the other person fulfills his own obligation.

 

However, another understanding is possible, according to which the person who hears fulfills the obligation on his own, for it suffices to hear the words in order to fulfill the obligation of speech. According to this understanding (for which support can be adduced, but not in this forum), why must the speaker be under obligation? One explanation is that the person who hears fulfills his obligation when he hears mitzva words, and only one who is under commandment can create such words, and not mere sounds. If so, it is not correct to say that a person who is under commandment is required in order to discharge the obligation of another person, but rather that he is needed in order to create mitzva words. How are we to define the words uttered by one who fulfills a commandment as an act of piety, and after he accepted it upon himself as an obligation? It stands to reason that here there is a difference between Torah obligations and rabbinic obligations. In the case of Torah obligations, someone who is not under obligation by Torah law is considered to be exempt and his words are mere sounds and not words with which another person can fulfill his obligation. As for rabbinic commandments, on the other hand, even acceptance of commandments as an obligation, even though this doesn't create a real obligation, and it remains in the category of "one who is not commanded but nevertheless performs the commandment," defines the words of the speaker as mitzva words, and not mere sounds. Thus it follows that one who hears those words is subject to the law that hearing is like speaking (shome’a ke-oneh), and he can fulfill his obligation in that way. As stated above, I present this idea with hesitation, and the entire matter requires further study.

 

            While the position of the Rashba requires further study regarding the last point, the position of the Tosafot is no more free of difficulties. The Rashba raised one difficulty, for which I have not found a satisfactory resolution: as part of his initial understanding, Rav Yosef said that he would have rejoiced had the law been decided in accordance with Rabbi Yehuda, for then he would have fallen into the category of one who is not commanded, but nevertheless performs the commandments. If even according to Rabbi Yehuda a blind person is obligated in the commandments by rabbinic decree, why would Rav Yosef have been happy? Surely he would have been in the category of one who is commanded and performs. The Tosafot relate to this question in other places (Eiruvin 96b and elsewhere). They say that Rav Yosef would have been happy because by Torah law he would have fallen into the category of one who is not commanded but nevertheless performs the commandments. I do not understand this answer: the bottom line is that he performs the commandment, not on a voluntary basis, but as an official obligation. What benefit then did Rav Yosef see in the fact that he fell into the category of one who is not commanded, but nevertheless performed the commandment? Of course, there is no difficulty understanding Rav Yosef's conclusion according to the Tosafot, because there is unique value to the fact that a person is commanded by Torah law and not only by rabbinic decree. It is, however, difficult, to understand the initial understanding.

 

            The Acharonim were exceedingly disturbed by another difficulty with the Tosafot: if a blind person is exempt from the commandments, how is it possible to obligate him by rabbinic decree? Surely he is exempt also from the Torah's command to obey the words of the Sages! What then obligates him to listen to what they say?

 

            Owing to this difficulty, the Turei Even (Megilla 24a) and others arrive at the conclusion, mentioned above, that Rabbi Yehuda exempts a blind person only from the Torah's positive commandments, but not from the negative commandments, and therefore a blind person is subject to the prohibition of "lo tasur," and thus he is obligated in rabbinic commandments. However, other Rishonim seem to imply otherwise. For example, the Ritva in his responsa (no. 97), when he cites the view of the Tosafot and explains why the Sages obligated a blind person, but not a woman, writes: "There it is different, for there are positive commandments in which a woman is obligated, but [a blind person] who is exempt by Torah law from all positive commandments and all negative commandments, if you exempt him even by rabbinic law, you treat him like a non-Jew." According to him, the similarity to a non-Jew is because he is exempt even from the negative commandments (see also Tosafot Rabbeinu Peretz on our passage).

 

            If indeed a blind person is exempt even from the negative commandments, what can obligate him in the commandments by rabbinic decree? Actually, this question does not arise only in this context. It also arises in connection with a minor upon whom the Sages imposed an obligation in the commandments based on the law of training in the commandments (according to those who maintain that this is an obligation imposed on the minor, and not only an obligation cast on the father to train his son in the performance of the mitzvot). It also arises in connection with the very obligation to obey the Sages, according to the Ramban who disagrees with the idea of basing rabbinic commandments on Torah commands – in the words of R. Elchanan Wasserman (Kuntrus Divrei Soferim 1, 14): "Based on what are we obligated to listen to them and not disobey them, seeing that there is no command in the Torah about this, not in Scripture and not in the received Halakha?"

 

            R. Wasserman does not relate to the case of a blind person, but the answer that he proposes to the other two difficulties is valid also with respect to the Tosafot's opinion concerning a blind person. According to him, the obligation to obey the Sages, according to the Ramban, is not based on a formal command of the Torah, but rather on the foundation of the obligation to perform the commandments – the obligation to fulfill the will of God. The Torah, being the Torah of truth, teaches us that the Sages express the will of God, and therefore when the Sages impose an obligation upon us it is clear that we are obligated to fulfill it. Even a minor, whom the Torah does not obligate in the commandments, is obligated to His will, and therefore if the Sages choose to obligate him, this casts an obligation upon him, and so too, in our case, regarding a blind person.

 

            It stands to reason that even if the obligation to obey the words of the Sages stems from the Torah command of "lo tasur," there is no reason to say that this command does not apply even to a blind person. One way to reach this conclusion was proposed by the Kasa de-Harsena, as cited above, that a blind person is obligated to perform the rational commandments, and according to him the duty to listen to the Sages is included in this category of commandments. Rav Asher Weiss proposed a different way to reach this conclusion. Since it is obvious that a blind person is obligated to perform the will of God,[13] he is perforce obligated to perform those general commandments in the Torah that relate to our obligation to God's service, including the obligation to obey those who bear the word of God, i.e., our Sages.

 

            To conclude this section I wish to note a novel position recorded by the Mordekhai in Megilla (no. 798, in the name of Rabbi Tuvya of Vienna). The Tosafot on our passage propose that according to Rabbi Yehuda a blind person is obligated in the commandments by rabbinic decree, and owing to this obligation he can discharge another person's obligation regarding rabbinic commandments. The Mordekhai took this one step further, proposing that he can also discharge another person's obligation with respect to Torah obligations, e.g., kiddush.[14] Here the Mordekhai is forced to distinguish between a woman, about whom the Gemara in Berakhot 20b says that if she is not obligated in kiddush by Torah law she cannot discharge the obligation for a man, and a blind person who can discharge the obligation for others. The distinction suggested by the Mordekhai is "that woman are different because they will never come to obligation, but [a blind person] could come to a Torah obligation if he would come to see. This being the case he can discharge the obligation for others even though he is obligated by rabbinic decree, and they by Torah law." He seems to imply (and see Kovetz Shiurim, II, no. 30) that in order to fulfill an obligation for others, there is a twofold requirement: that the words be mitzva words, and not merely optional talk, and for this an obligation by rabbinic decree suffices, and also that the speaker be a person who is under obligation and can fulfill the obligation for others, and for this requirement theoretical potential to reach full obligation is enough.

 

V. A blind person as one who is not commanded but nevertheless performs mitzvot – The underlying idea

 

            Rav Yosef's change in understanding regarding the issue of "one who is not commanded but nevertheless performs the mitzvot" has led to intensive discussion among our greatest thinkers. We shall not relate to this discussion in this shiur. I wish, however, to suggest a perspective that focuses on the unique nature of a blind person, and the degree of detachment that exists between him and the world and human society that surrounds him.

 

            In many cultures a blind person enjoys unique and distinguished status. A blind person is perceived as one whose lack of outer vision gives him extra-sensory inner vision, which is deeper and more penetrating than the outer type. Thus, for example, the figure of Tiresias in Greek mythology, a blind person who becomes a prophet. And so too, mutatis mutandis, the figure of the blind beggar in Rabbi Nachman of Bretzlav's "Story of Seven Beggars." There is something real about this perception. Surely this is God's response to the prophet Shemuel, who was inclined to choose Eliav as king, owing to his height and appearance, and not David: "For a man looks on the outward appearance, but the Lord looks on the heart" (I Shemuel 16:7).

 

            If we join this to the words of Rabbi Yehuda, a blind person is not part of outside society, and he is not a partner to collective commands. As the Maharal says (Tif'eret Yisrael, chap. 17 and on), the Torah was not given to the Patriachs, Avraham, Yitzchak and Yaakov, not because they were inferior to the members of the generation of the wilderness, but because the Torah could only be given to a nation, and the Patriarchs, as great as they were, were merely individuals. A blind person is of course part of the nation of Israel, but in a certain sense he stands apart from others, and therefore, like the Patriarchs, he fulfills the Torah's commandments as one who is not commanded, but nevertheless performs them. Rav Yosef thought that this fulfillment is superior, and that it expresses that inner vision that is free of the chains of this world, the chains of human society and the chains of a formal, obligating command. Indeed, there is great importance to the fulfillment of "one who is not commanded, but nevertheless performs the mitzvot" in our world – as a historical stage in the framework of the Patriarchs who fulfilled the entire Torah, in the standing of a blind person, and in each and every one of us who at times reaches this fulfillment. This is fulfillment that demonstrates our connection to the good in the Torah that does not stem from external obligation.

 

            However, Rav Yosef's conclusion, after hearing the words of Rabbi Chanina that greater is the reward of those who perform the mitzvot being commanded than that of those who are not commanded but nevertheless perform the mitzvot, is that despite the unique nature of inner vision, it does not come in place of real partnership in this world, in human society and among the people of Israel who stood at the foot of Mount Sinai and rose up as one body to the level of those who are commanded and do the mitzvot.

 

(Translated by David Strauss)

 

Sources For the next ShiurBava Kama #20

INjury to a Slave

 

For the next shiur, learn the mishna on p. 87a. The shiur will focus on the law governing a non-Jewish slave, primarily as the victim of an injury, but also as the cause of an injury.

 

1. One who causes an injury to a slave belonging to another person – see once again the Minchat Chinukh that we discussed in the first shiur on chapter Ha-Chovel. He proposes a qualification for the Rambam's position that liability for nezek is a kenas (see below). It is recommended that one review the difficulty that we raised in connection with this opinion.

 

The fundamental question that will accompany us throughout the shiur: is it the master whose slave suffered the actual injury that is regarded as the injured party, and therefore he is entitled to compensation; or is it the slave who suffered the physical injury that is considered the primary victim of the injury, and the master receives the compensation only by virtue of the rule that "whatever is acquired by a slave is acquired by his master." Think about the rationales underlying these two possibilities.

 

Additional sources: Gittin 42b, "Ibaya lehu: Me'ukav get shichrur yesh lo kenas… dilma keman de-amar eino tzarikh"; Tosafot ad loc., s.v. chavli; Tosafot ha-Rosh (see below).

 

Gittin 12a: "The Master said: He must compensate his master for his shevet and for the ripuy. [What need is there to tell me this in] the case of shevet, which is obvious? Shevet is mentioned because the payment for ripuy [had to be mentioned]. Surely the payment for ripuy goes to the slave, for he needs it for his cure. This must be stated in view of a case where it was calculated that he requires five days [of treatment] and by the application of a painful remedy he was cured in three. You might think that in this case [the whole of the estimated medical cost goes to the slave since] the extra pain is his; but now know [that it does not]"; Rashi, ad loc. It is recommended that one review the words of the Kovetz Shiurim that we saw in the shiur concerning ripuy (see below).

 

2. One who causes an injury to his own slave – Rambam, Hilkhot Chovel u-Mazik 5:1, 3; Beit Yosef and Bach, 420 (see below); Ketzot ha-Choshen 424, 1.

 

Regarding ripuy – Tosafot on our passage, s.v. be-eved. Explain the difficulty in light of the words of the aforementioned Kovetz Shiurim. How can the difficulty be resolved?

 

Rambam, Hilkhot Rotze'ach 2:11-14.

 

3. A non-Jewish slave who causes an injury or damage – the mishna here and in tractate Yadayim 4:7; Rashi, 4a, s.v. lav; Rambam, Hilkhot Geneiva 1:9.

 

4. A slave who causes an injury to himself – Tosefta Bava Kama 9:8: "A slave that caused an injury to himself goes free and pays his master." All the commentators agree that the Tosefta does not come to teach us the inexplicable novelty that a non-Jewish slave that causes an injury to himself goes free based on the law of "a tooth and an eye." Rather it means to say that when a slave who had caused an injury to himself goes free, he must pay his master. Try to explain this law.

 

Minchat Chinukh, 49, no. 25:

"It is clear to me that if a person caused an injury to a non-Jewish slave belonging to another person, he is liable to pay the [slave's] owner the five payments… Here the injury is not a kenas from which a person is exempt when he admits his guilt, because a person's slave is like his ox and other property… If so, he is like a person who caused damage to another person's ox, where the damage is a chiyyuv mamon, regarding which even a person who admits his guilt is liable."

 

Kovetz Shiurim, Ketubot, 218:

If one causes an injury to a non-Jewish slave, the payment for ripuy goes to the slave, for he needs it for his cure (Gittin 12). On the face of it, what difference does it make that he needs it for his cure. Nevertheless "whatever is acquired by a slave is acquired by his master!" This proves that the payment for ripuy is not a chiyyuv mamon, but rather he must actually heal him. And if he cannot heal him, he must hire doctors to do so. Since it is the injured party's right that he be actually healed, the rule that "whatever is acquired by a slave is acquired by his master" does not apply…

 

Tosafot ha-Rosh, Gittin 42b:

If others caused him an injury, they pay his master. Even if he is entitled to his handiwork, as I have explained above, nevertheless the compensation for the nezek goes to the master. Even shevet, even though he is idled from his work, since it is because of the injury to his body, and the penalty goes to his master, what is the difference between killing him entirely and killing him partially?

 

Beit Yosef, 420:

I am astonished by our master. Why does he require that the slave belong to another person? Even if one caused an injury to his own slave, why should he not be liable for lashes for a blow that does not warrant a peruta to be paid in recompense, for even though he is his slave, since he is obligated in certain commandments, [the master] is not permitted to strike him.

 

Bach, 420:

 

It seems to me that he specifies the slave of another person only to teach us that in the case of a blow that does not warrant a peruta to be paid in recompense, even if he struck a slave belonging to another person, he receives lashes. For regarding his own slave, there is no difference, for even in the case of a blow that warrants a peruta to be paid in recompense, he receives lashes, since he does not make any payment.

 

Ketzot ha-Choshen, 424, 1:

If one causes an injury to his own non-Jewish slave, he is exempt, that is to say, even from lashes. And even though where there is no payment in the case of injury there is liability for lashes (420, 2), [here he is exempt], because the exemption granted the master is only because "whatever is acquired by a slave is acquired by his master," and he is liable for payment, only that the master acquires it from [the slave] afterward. See Beit Yosef (no. 5), and therefore he wrote there that in the case of a blow that does not warrant a peruta to be paid in recompense, he is liable for lashes, since there is no payment at all.


[1] Regarding this exceptional position, see Beit Yosef, OC 473, in the name of Rabbeinu Yerucham.

[2] HaRav Aharon Lichtenstein, "Be-Inyan Chiyyuv Suma be-Ner Chanuka," Ha-Darom  50 (5780), 184 (this article will appear in a volume of HaRav Lichtenstein's articles to be published in the near future). The article, written for personal reasons, was dedicated to "the descendants of Yitzchak and Yaakov, disciples of Rav Sheshet and Rav Yosef, who accept their lot with love and serve their Creator in darkness. May God have mercy upon them and deliver them from affliction to comfort and from darkness to light, and may the prayer of the sweet psalmist of Israel be fulfilled in them: 'Open my eyes, that I may behold wondrous things out of your Torah' (Tehilim 118:18)."

[3] This citation is taken from the Ra'avad's novellae on Bava Kama, edited by S. Atlas. I see now that the edition of R. Eliyahu Lichtenstein has a different reading, and all that it says is that a blind person is not "qualified to give testimony" (bar edut, rather than bar da'at).

[4] See also the words of the Rosh and the Rash of Senz in the Shita Mekubetzet (ad loc.).

[5] We will not expand here upon the various approaches to a blind person's disqualification to offer testimony. See Tosefta, Shavu'ot 3:6; Rashi on our passage, and Gilyon HaShas.

[6] The objection cannot be raised that a thief should also be exempted from boshet, "because if so it would turn out that a sinner is being rewarded." So too an objection cannot be raised from relatives, because they are people who in and of themselves are fit to give testimony, and it is only against a certain person that they can not testify.

[7] Turei Even, Megilla 24a, and other Acharonim. And not like the Rid in Sefer Makhri'a and the Ritva in his responsa that will be cited below.

[8] Responsa Rabbi Akiva Eiger, first edition, no. 169.

[9] "And they are permitted to recite blessings over positive time-bound commandments, even though they are exempt… Know [that this is true], for it says in chapter Ha-Chovel: 'Rav Yosef said: Formerly I used to say: If someone would tell me that the halakhah is in accordance with Rabbi Yehuda who declared that a blind person is exempt from the commandments, I would make a festive occasion for our Rabbis, because though I am not commanded I still perform commandments.' If in a sitution where a person is exempt but nevertheless performs the mitzva he is forbidden to recite the blesing, why would he make a festive occasion? Surely he would miss out on the blessings recited over tzitzit, lulav, tefilin, megilla, Chanuka candles, sukka, havdala, kiddush, the blessings of Shema in the morning and in the evening, and all the blessings. And it says in chapter Ha-Meni'ach (Bava Kama 30a): 'He who wishes to be pious must in the first instance particularly fulfill the laws of blessings'" (Tosafot 33a, s.v. ha).

[10] This is what appears in some of the versions of the words of the Ramban in Kiddushin 31a: "Someone who properly performs the commandments of the Torah, even though he is not commanded, e.g., women and non-Jews, receive reward for them"; and so in the Rambam's commentary to the Mishna, Terumot 3:9: "Even though non-Jews are not obligated in the mitzvot, if they fulfill them they receive some reward for them"; see also Hilkhot Melakhim 10:10: "If a descendant of Noach wished to perform one of the other mitzvot of the Torah in order to receive reward, we do no not prevent him from performing it in proper manner"; and so in Derashot ha-Ran, derasha 5, in a different formulation, s.v. od ta'am acher ba-me she-amru, etc.

[11] The Ra'avad in his commentary to Torat Kohanim (4a in the standard editions) agrees with the Tosafot that a blind person is obligated in the mitzvot by rabbinic decree, and he can even recite a blessing over them. He adds: "For he is no worse that a minor who has not yet reached the stage of training for mitzvot." It is possible that this should be emended to read: "a minor who has reached the stage of training for mitzvot," for a minor who has not yet reached the stage of training for mitzvot is not obligated even by rabbinic decree. Assuming that this is correct, the analogy that he suggests teaches that it was the Sages’ preference that there be no Jew with intelligence – even the most basic level – who abstains from fulfilling mitzvot and conducts himself as a non-Jew. This reflects an interesting understanding of the law of training minors in the performance of the mitzvot, but this is not the forum in which to expand upon the matter. It should also be noted that the Rashba in Megilla 24a cites the position that imposes obligation by rabbinic decree in a manner that is different from what is found in the Tosafot before us: "By rabbinic decree he is obligated. This applies to a seeing person who became blind, since he had previously been obligated, and even if he was blinded as a minor, nevertheless he had been fit to reach obligation in mitzvot. But one who is blind from birth is wholly exempt."

[12] This is also proposed in the Tosafot, Rosh ha-Shana 33a, s.v. ha.

[13] In his shiur, which was delivered close to Parashat Toledot, Rav Weiss chose to illustrate this idea as follows: Let us imagine that God revealed Himself to Yitzchak in his old age, and commanded him to repeat what his father had done, rise up early the next morning, take his son Yaakov and offer him as a burnt-offering on Mount Moriya. Is it possible that Yitzchak would have responded to this command and say that he is blind and a blind person is exempt from the commandments? 

[14] The basis that he offers for this is the fact that one can fulfill the obligation of kiddush, even if it is recited during a time defined as tosefet Shabbat, even according to those who say that tosefet Shabbat is not by Torah law. That is to say, an act that is valid by rabbinic law can discharge a Torah obligation. I do not fully understand how he understood the law of kiddush. In any event, according to the Rambam, there is no proof from here, for in his opinion, the obligation to recite kiddush is to mark the entry of Shabbat close to the time of entry, either before or after it.