SALT - Friday, 6 Elul 5776 - September 9, 2016

  • Rav David Silverberg

            The Torah in Parashat Shoftim (20:19) introduces the prohibition of bal tashchit – cutting down fruit trees.  The Rambam, in Hilkhot Melakhim (6:10), writes that this prohibition applies not only to the destruction of fruit trees, but also to the wasteful destruction of any property.  Interestingly, however, he writes that only the destruction of trees is punishable with malkot (lashes); the wasteful destruction of other items does not render one liable to court-administered punishment. (Although, the Rambam adds that one who destroys other forms of property receives makkat mardut – lashes ordained by Chazal.)  At first glance, the Rambam appears here to take the position that the Torah prohibition of bal tashchit is limited to the destruction of fruit trees, whereas other forms of destruction are forbidden only mi-de’rabbanan, by force of rabbinic enactment.  After all, if the Torah prohibition included the destruction of all kinds of property, then there would be no distinction made with regard to the punishment.  Indeed, this is how several Acharonim understood the Rambam’s position, including the Noda Bi-yehuda (Tinyana, Y.D. 10) and the Chayei Adam (11:32).

            However, elsewhere, in Sefer Ha-mitzvot (lo ta’aseh 57), the Rambam writes explicitly that the Torah prohibition of bal tashchit includes the destruction of any kind of property, such as burning garments and breaking utensils.  The question thus arises as to why, in the Rambam’s view, destroying items other than trees does not yield the punishment of malkot, if it, too, constitutes a violation of the Torah prohibition of bal tashchit.

            Rav Asher Weiss (Minchat Asher, Sefer Bereishit, 44:4) points to these comments of the Rambam as an example of a broader position taken by the Rambam, that a distinction exists between the primary aspect of a Biblical command and its secondary applications.  For example, many writers struggled to understand the Rambam’s view in Hilkhot Ma’akhalot Assurot (8:16) that one who derives benefit from forbidden foods in a manner that does not involve eating is not liable to malkot.  The Gemara (Pesachim 21b) clearly establishes that as a general rule, unless indicated otherwise, any food which the Torah forbids for consumption is likewise forbidden for any other type of benefit.  Benefit is certainly included in the Torah prohibition against eating forbidden foods, and the question thus arises as to why one would not be liable to malkot for violating the prohibition through other forms of benefit.  Rav Weiss posits that the Rambam drew a distinction between the primary prohibition and its subsidiaries.  Even though the Torah includes in its prohibition both eating and other forms of benefit, nevertheless, malkot is warranted only when one violates the primary prohibition, which is mentioned explicitly in the verse, and not for violating secondary aspects of the prohibition which the oral tradition includes under the Torah law.

            Consistent with this approach, the Rambam distinguishes between destroying fruit trees and other violations of bal tashchit.  Although all forms of wasteful destruction are included under the Torah prohibition, nevertheless, a distinction exists between the destruction of fruit trees, which the Torah explicitly mentions, and the destruction of other items, which is a secondary component of this law.  Malkot is warranted only in the former cases, when one violates the primary aspect of the prohibition, but not for violating its secondary component.