SALT Parashat Ki Tetze 2015/5775

  • Rav David Silverberg

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Motzaei Shabbat

The Torah in Parashat Ki-Teitzei presents the law of bein sorer u-moreh – the “wayward” son who rejects his parents’ authority and must be killed by Beit Din.  The Gemara in Masekhet Sanhedrin (71a) famously comments that the Torah’s discussion of this subject is purely theoretical; so many conditions apply that it is all but impossible for a youngster to ever qualify as a bein sorer u-moreh.  This law was nevertheless presented, the Gemara comments, for the purpose of “derosh ve-kabeil sakhar” – that we may receive reward for studying it.  On the surface, this means that these laws are included in the sacred corpus of Torah to increase the amount of information we can study and thereby earn reward for learning, given the great rewards for Torah learning.  Rav Shimshon Raphael Hirsch, however, in his Torah commentary (introducing the section of bein sorer u-moreh, 21:18), explains differently.  He writes that the bein sorer u-moreh is described as a theoretical prototype, and this section thus “forms a rich source of pedagogic truths and teachings, studying which…will richly repay parents for their business of bringing up children.”  In other words, the “rewards” of which the Gemara speaks are the benefits we could gain by learning and applying the lessons conveyed through the laws of this theoretical halakhic construct.

One example of a pedagogical lesson which Rav Hirsch infers from the laws of bein sorer u-moreh is the condition that the child is “zoleil ve-sovei” – a glutton who indulges in meat and wine (21:20).  A rebellious child cannot be considered a bein sorer u-moreh, the Gemara writes, unless he consumes a certain quantity of meat and wine, and steals money from his parents to obtain it.  Rav Hirsch finds it very significant that the Torah chooses this particular quality – gluttony – as a necessary prerequisite for a child’s being assigned the status of bein sorer u-moreh:

As the Torah picks out from all the possible bad deeds to be a criterion of hopeless degeneration, just the case where, at the time a Jewish boy matures to youth and should turn with enthusiasm to the ideals of spirituality and morality, he shows himself surrendered to “gorging and guzzling,” there lies therein an important hint for fathers and mothers, altogether for the whole tenor of the home in which young human souls are to mature towards their spiritual moral future, not to allow “good eating and drinking” to be a predominantly “important” item of the home.  Only where spiritual and moral matters are given incomparably higher value is the atmosphere created in which young people are protected from sinking into brutish pandering to the senses.

The Torah makes “zoleil ve-sovei” a criterion for becoming a bein sorer u-moreh primarily as a message to parents, warning them not to make food and drink the focal point of the home.  The hypothetical process of degeneration which the Torah describes begins with “zoleil ve-sovei,” with the unbridled pursuit of physical gratification.  The message conveyed is that children must be raised in an atmosphere which focuses mainly on ideals and values, not on indulgence.  They must be taught and shown the need for sensible moderation and limits, and trained in the difficult art of self-discipline and self-restraint.  The theoretical persona of the bein sorer u-moreh teaches us that moral decline often begins with “zoleil ve-sovei,” assigning disproportionate importance to the pursuit of physical gratification, rather than the pursuit of moral and spiritual greatness.

Sunday

 Torah in Parashat Ki-Teitzei (22:6-7) introduces the famous mitzva of shilu’ach ha-kein, which requires sending away a mother bird before taking eggs or chicks from the nest.  The Mishna in Masekhet Chulin (140b) establishes that since the Torah speaks here of both eggs and chicks, the law applies only to eggs which resemble chicks, and to chicks which resemble eggs.  Meaning, one must send away the mother bird to take the eggs only of the eggs are “alive” like chicks, in the sense that they are capable of producing live chicks.  If a person detects that the eggs are corrupted and will not produce life, then this obligation does not apply.  Likewise, this law does not apply if the chicks have grown to the point where they are independent and no longer rely on their mother’s constant care, since such chicks do not resemble an egg.

We can perhaps appreciate the broader significance of these exceptions in light of the symbolic approach that has been taken to explain the requirement of shilu’ach ha-kein.  Rav Shimshon Raphael Hirsch, among others, explained that the Torah here draws our attention the importance and sanctity of the maternal instinct.  When one seizes the mother bird while taking her young chicks and eggs, he takes unfair advantage of the bird’s instinct to care for and protect her young.  The Torah wants us to respect this instinct, rather than exploit it, and it therefore requires us to send away the mother bird rather than easily capture it as it tries protecting the eggs which we need for ourselves.  Understandably, then, this law applies only in cases where the mother bird’s care is needed.  If the eggs will not produce life, or if the chicks are already capable of flying and caring for themselves, then the bird’s maternal instincts are not keeping it to the nest, and thus one may take the mother bird.  (See Rav Yehuda Leib Yehuda Ginsburg’s Yalkut Yehuda.)

Probing a bit deeper, the two situations mentioned by the Mishna represent two forms of wasted time and energy.  An activity is fruitless either because it is vain and meaningless, or because it is unnecessary.  The image of a mother bird tending to a corrupted egg that in any event cannot produce life perhaps symbolizes the pursuit of vanity, expending time and resources on meaningless endeavors that will not yield any productive results.  The other case, where a mother bird tends to chicks which have already grown to independence, represents the tendency to pursue goals which have already been met, and to try solving problems which do not need to be solved.  Too often, we are guilty of both kinds of wasteful engagement: involving ourselves in unimportant, vain activities, and performing work which is not needed in order to feel important and accomplished.  Symbolically, then, this halakha reminds us to use our time and energy wisely, to ensure that we busy ourselves with meaningful and significant activities, and avoid as much as possible wasteful and unproductive pursuits.

Monday

            The Torah in Parashat Ki-Teitzei commands that soldiers during warfare must have a shovel with them to use to cover their bodily waste.  The reason given for this command is that God accompanies the Israelite military camp, and therefore a proper atmosphere of cleanliness and dignity must be maintained (“and your camp shall be pure” – 23:15).

The Gemara in Masekhet Berakhot (25a) cites this verse as a source for the prohibition against speaking in matters of sanctity in the presence of bodily waste.  Just as it is forbidden to allow bodily waste to be exposed in the military camp, where God is present, it is likewise forbidden to bring God’s presence into a place with exposed waste material, by speaking words of prayer of Torah at such a site.

            The Gemara’s application of this prohibition calls upon us to examine the precise meaning of this concept that God is present in the Israelite camp.  In what way is God present in the military camp, such that the camp can be compared to a place of prayer or study?  On what basis did the Gemara draw this comparison?

            This question is likely what prompted several Rishonim, including the Yerei’im (432) and Rabbenu Bechayei, to explain that the Torah speaks here specifically of a case when the aron was brought out to war.  When the ark accompanied the military camp, it symbolized the divine presence, and thus a special level of cleanliness and purity was required.  Hence, Chazal inferred that whenever a person studies and prays, too, this strict standard of cleanliness must be maintained, as God is present under such circumstances just as when the ark accompanied the soldiers as they prepared for battle.

The Rambam, however, in Hilkhot Melakhim (6:15), writes explicitly that this obligation does not depend upon the presence of the aron, and anytime the Israelite camp went out to war, they were required to ensure to cover bodily waste.  Apparently, the Rambam maintained that the divine presence always accompanied the soldiers, and not just through the symbol of the ark.  The simplest explanation, it would seem, is that God accompanies the soldiers to assist them in battle, and thus His presence is among them regardless of the presence of the aron.  However, the Sefer Ha-chinukh (566) appears to explain this concept differently.  He writes that God is present in the military camp because it was specifically the most righteous members of the nation who waged battle.  As the Mishna (Sota 45a) comments, soldiers who feared having transgressed sins were excused from battle, such that the only ones who remained were those who were confident about their spiritual stature.  The fact that the camp consisted entirely of righteous men, the Chinukh comments, is what requires a stricter level of cleanliness, as God is present when such a group is assembled.  It is perhaps on this basis that the Gemara compared the military camp to the spiritual setting of learning or prayer.  Just as God accompanies the righteous, whose mind and thoughts are intently focused on their spiritual aspirations, similarly, God accompanies any of us when we engage in study and prayer, and thus both contexts require an appropriate atmosphere of cleanliness.

(See Umka De-parsha, Parashat Ki-Teitzei, 5774)

Tuesday

            The Torah in Parashat Ki-Teitzei (24:15) reiterates the command to pay workers on time, when their payment is due, and not to withhold their wages: “Be-yomo titein sekharo” (“You shall give his wage on the same day”).

            It is told that the Chafetz Chayim zt”l had the  practice of specifically waiting until after a worker completed the job before paying the money owed for the work.  Since paying workers fulfills the Torah command of “be-yomo titein sekharo,” the Chafetz Chayim reasoned, anytime one hires a worker he has the opportunity to earn the merits of fulfilling a mitzva.  If, however, one pays the wages before they are due, he forfeits this opportunity, as the mitzva requires paying wages that are owed.  By preempting his obligation and paying the wages early, one loses the opportunity to fulfill a mitzva.  Therefore, the Chafetz Chayim waited to pay until the wages were due, so his payment could fulfill the mitzva.

            A common contemporary expression of the Chafetz Chayim’s line of reasoning would be paying taxicab drivers.  Rav Yosef Shalom Elyashiv zt”l is cited as saying that it is preferable to pay a driver only after reaching one’s destination, as only at that point is the payment due.  One who pays the driver while his work is still in progress, and thus before the payment is required, forfeits a mitzva opportunity, and therefore the payment should be given only once the trip is completed.

            Rav Asher Weiss, however, boldly challenged this theory.  It is inconceivable, he argued, that paying a worker early can be less preferable than paying him after the work is completed.  When it comes to the Torah’s laws governing interpersonal affairs and financial matters, Rav Weiss contends, we take the underlying rationale of the mitzvot into account in determining the halakha (“azlinan batar ta’ama”).  True, when it comes to the Torah’s ritualistic commands, it is questionable whether and to what extent a given law’s line of reasoning affects its practical observance.  Certainly, however, the reasons for interpersonal laws are taken into account.  Thus, when it comes to paying workers, delaying payment cannot possibly be preferable to paying early.  The Torah’s concern in issuing this command, quite obviously, is to ensure that a worker receives his wages promptly and does not have to wait for the compensation he deserves.  Undoubtedly, one satisfies this requirement by paying before the job is completed no less than he does by paying promptly upon the job’s completion, and there is thus no reason whatsoever to specifically wait until the worker finished his job.

Wednesday

The Torah in Parasha Ki-Teitzei issues the command to pay one’s workers when their wages are due, expressing this requirement both as a prohibition against withholding wages, and an affirmative command to pay: “Do not withhold what is due to a poor or destitute worker… You shall give his wage the same day” (24:14-15).  The Rambam, in Hilkhot Sekhirut 11:1) writes that one who transgresses this prohibition, and withholds the wages due to his worker beyond the time payment is due, is not liable to corporal punishment.  Although violations for most mitzvot lo ta’aseh (Biblical prohibitions) are punishable by makkot (lashes), this is not the case regarding withholding wages, which falls under the category of lav ha-nitan le-tashlumin – prohibitions which require payment.  There is a rule that if a person transgresses a Torah violation that results in a monetary obligation, no corporal punishment is administered.  The Rambam applies this rule to the case of osheik sekhar sakhir – withholding a worker’s wages – and explains on this basis why one who violates this prohibition does not receive malkot.

The Panim Me’irot (1:26) and the Minchat Chinukh (230) question this application of the rule of lav ha-nitan le-tashlumin, noting that transgressing this prohibition does not, in truth, impose upon the violator any monetary requirement.  An employer who delays paying a worker – let’s say, for a week – is guilty not of taking the worker’s money, but rather of causing his worker distress by the weeklong delay, and for this there is no payment required.  The Torah does not impose any additional obligation upon the worker besides the compensation owed to the worker for his services; the employer does not have to compensate the worker for the delay.  As such, this violation does not create any financial obligation, and thus it should not be classified as a lav ha-nitan le-tashlumin.

Rav Asher Weiss refutes this argument, claiming that withholding wages is no different from any other financial Torah violation which requires payment.  The rule of lav ha-nitan le-tashlumin applies to theft, even if one steals for the sake of annoying his fellow, and from the outset intended to return it, and even if one borrows something without permission, which is halakhically considered theft.  In these instances, too, the violator merely caused the victim the distress of being temporarily without the stolen goods, and did not cause actual financial harm.  These situations are no different from withholding wages for a period of time, and yet they fall under the category of lav ha-nitan le-tashlumin.  This seemingly proves that the rule of lav ha-nitan le-tashlumin applies to all financial violations, even those which entail temporarily withholding somebody else’s money, and not causing actual financial loss.

In defense of the aforementioned Acharonim, however, we might point to a clear distinction between the case of withholding wages and a situation of theft committed with the intention of returning the object.  When it comes to withholding wages, the violator bears no new liability that he did not bear before committing the violation.  He is required only to pay the wages he was required to pay before he violated the Biblical command; the violation did not result in any additional liability.  This is quite different from the case of “temporary theft,” where the forbidden act created an obligation to return the “stolen” item.  Such acts fall under the category of lav ha-nitan le-tashlumin because the forbidden act results in a monetary obligation.  The same cannot be said about withholding wages, and for this reason, perhaps, the Panim Me’irot and Minchat Chinukh questioned the Rambam’s application of the rule of lav ha-nitan le-tashlumin to this context.

Thursday

The Chafetz Chayim, in his Bei’ur Halakha (242:1), addresses the situation of somebody with limited funds who, on Friday, must choose between paying his worker the money he owes, and purchasing fine foods for Shabbat.  If he pays his worker the money he owes, he would be left without funds for special foods in honor of Shabbat.  The question arises in such a case as to which of these two mitzvot – paying workers on time and oneg Shabbat – takes precedence.  The Chafetz Chayim rules that the person in this case must pay his worker, even at the expense of honoring Shabbat, because promptly paying workers constitutes a Torah obligation, as the Torah explicitly commands in Parashat Ki-Teitzei: “Be-yomo titein sekharo” (“You shall pay him his wage that same day” – 24:15).  The requirement of oneg Shabbat, by contrast, has the status of “divrei kabbala” – an obligation introduced by the prophets, as it is mentioned for the first time by Yeshayahu (58:13).  The Chafetz Chayim adds that although some halakhic authorities consider oneg Shabbat a Biblical requirement, nevertheless, preference must be given to paying wages, which entails both a mizvat asei – a command to promptly pay the wages – and a mitzvat lo ta’aseh – a prohibition against delaying payment.  A famous halakhic principle establishes that an affirmative command does not override a conflicting prohibition that also entails an affirmative command (“ein asei docheh lo ta’aseh va-asei”).  Therefore, the command to give honor to Shabbat does not override the prohibition against delaying payment of wages.

The implication of the Chafetz Chayim’s comments is that in principle, if oneg Shabbat indeed constitutes a Torah command, it would override the prohibition against delaying the payment of wages, in light of the rule of” “asei docheh lo ta’aseh” (an affirmative command overrides a prohibition).  It is only because the Torah issues both a prohibition against delaying payment and a command to pay promptly that this requirement is not overridden by a conflicting affirmative command.

Rav Asher Weiss noted, however, that the rule of “asei docheh lo ta’aseh” would not apply in this instance for two other reasons, irrespective of the fact that promptly paying wages also entails a mitzvat asei.  For one thing, this rule is relevant only if the affirmative command is fulfilled at the same moment the conflicting prohibition is violated.  If one must violate the prohibition in the process – but not at the moment – of fulfilling a mitzvat asei, he may not transgress.  A prohibition is suspended only if the forbidden act itself fulfills an affirmative command, but not if it must be violated in preparation for fulfilling the mitzva.  In the situation addressed by the Chafetz Chayim, the violation is transgressed once payment is delayed beyond the prescribed time, whereas the mitzva of oneg Shabbat is fulfilled only later, on Shabbat, when one enjoys the delicacies he purchased.  Therefore, this situation does not qualify for the rule of “asei docheh lo ta’aseh.”

Additionally, Rav Weiss asserts that Torah prohibitions relating to interpersonal relations are excluded from the rule of “asei docheh lo ta’aseh.”  Nowhere do we find Halakha permitting transgressions such as theft for the sake of fulfilling a mitzva.  The principle allowing transgressing a violation for the sake of fulfilling a mitzva applies specifically to prohibitions that belong to the realm of bein adam la-Makom – our obligations to God, and not those involving our responsibilities to other people.

Friday

            The Torah issues the prohibition against delaying payment of wages twice – once in Parashat Ki-Teitzei (24:14-15), and once earlier, in Sefer Vayikra (19:13), where the Torah commands, “A worker’s wages shall not sleep with you until morning.”  As Rashi explains, this command refers to a day laborer, whose employer is required to pay him by the next morning.

            The Gemara in Masekhet Bava Metzia (112a) notes that the Torah formulates this law as a prohibition that forbids the employer from keeping the worker’s wages “with him,” implying that he has the money, but does not give it to the worker.  On this basis, the Gemara establishes that if the employer does not have the money available, he is not required to pay, and may delay payment until funds become available.  This halakha is codified in the Shulchan Arukh (C.M. 339:10).

            Seemingly, this means that the employer is not required to resort to selling property or securing a loan in order to pay his worker.  However, the Chafetz Chayim, in his Ahavat Chesed (1:9:7), rules that if an employer is able to secure a loan so he can pay his worker, he is required to do so.  The Chafetz Chayim infers this ruling from Rashi’s comments (in Vayikra) that the Torah requires an employer to pay a day worker by the next morning, rather than immediately at the end of the day, in order to give the employer time “le-vakeish ma’ot” – to obtain cash.  This appears to mean that an employer must, if necessary, obtain a loan in order to pay his workers.  Likewise, the Sefer Ha-chinukh (588) writes, “…the Torah obligated [an employer to pay] only if he has [the money] in his home, or if he is able to pay.”  This passage indicates that even if the employer does not have the money available (“in his home”), he is still required to pay the worker “if he is able to pay” – likely referring to the ability to borrow money.  Thus, although an employer does not have to sell his possessions to obtain money to pay his worker, he is required to borrow money if he can. 

            This also appears to have been the view of the Chayei Adam, who wrote amid his list of admonitions in his will (printed at the end of Zikhru Torat Moshe) that one should miss one of the daily prayers if this is necessary to obtain the money owed to a worker.  Since one violates a Torah prohibition by delaying payment, the Chayei Adam noted, the effort to obtain funds overrides the obligation of prayer.  This ruling clearly assumes that one must even resort to borrowing if this is necessary to pay a worker his wages which are due.

            Rav Yosef Engel, in an astonishing passage in his writings (Chosen Yosef, 115, raises the question of whether one must pay his worker the wages he owes if he will then be left without anything to eat and will die of starvation.  Rav Engel notes that if the worker will be able to sustain his life even without the wages, then clearly the destitute employer is permitted to withhold the money for himself, as Halakha permits saving one’s life with somebody else’s possessions.  The question arises in a case similar to the famous situation of the two desert travelers with only a single jug of water, where the employer must choose between sustaining his own life and forfeiting his life in order to sustain his starving worker’s life.  Remarkably, Rav Engel proposes that the employer must, in fact, forfeit his life in such a case, since in any event one of the two will die, and it is thus preferable for the employer to die rather than sustain himself by violating the prohibition against delaying payment.

            Rav Asher Weiss, however, rejected such a notion.  He contended that undoubtedly, when the Gemara allows an employer to delay payment if he does not have money available, this does not refer only to a case where he has absolutely nothing at all.  Rather, it means that the employer is allowed to delay payment if he has no available funds beyond what he needs for his basic living expenses.  Assuredly, if the worker is starving to death and has no money, he bears no obligation to surrender his life by giving his last bit of money to his employer.