SALT - Wednesday, 4 Elul 5776 - September 7, 2016

  • Rav David Silverberg


            The final verses of Parashat Shoftim present the law of egla arufa, the ritual required when a murder victim is discovered near a city and the killer has not been identified.  The Torah requires breaking the neck of a calf near a stream to atone for the crime, and it refers to the stream as an area “asher lo yei’aveid bo ve-lo yizarei’a” – which is not cultivated or sown.  The Gemara (Sota 46b) interprets this as a halakhic prohibition against plowing or sowing the land upon which an egla arufa ceremony was performed, forever.

            Many Acharonim discuss the intriguing question posed by one of the lesser-known Rishonim, Rav Shimshon of Chinon (in his work Sefer Ha-keritut), regarding this prohibition.  Since nowadays we do not know where in the Land of Israel egla arufa ceremonies have taken place, it should, seemingly, be forbidden to sow or plant anywhere in Eretz Yisrael.  Although we may certainly presume that the majority of lands in Eretz Yisrael were not used as sites for egla arufa, nevertheless, Rav Shimshon writes that the standard rule of rov, which allows relying on a statistical majority with regard to halakhic prohibitions, cannot be applied.  There is a famous exception to the rule of rov known as “kol kavu’a ke-mechetza al mechetza dami,” which suspends the principle of rov if the forbidden and permissible entities are fixed in place.  If an item was taken from a mixture, and it is unknown whether it originated from the minority forbidden group or the majority permissible group, then we may rely on the statistical majority and permit the item.  If, however, the question arises regarding places themselves, rather than an object that was taken from one of them, then we cannot rely on a statistical majority.  Seemingly, then, every single piece of agricultural land in Eretz Yisrael has the status of “safeik” – potentially forbidden for cultivation – and since we cannot apply the rule of rov, it should be halakhically prohibited to cultivate it.  Clearly, if this were the case, it would have been mentioned in halakhic sources that agriculture anywhere in Eretz Yisrael is forbidden, and thus clearly this cannot be correct.

            Rav Shimshon answers this question by proposing a significant limitation on the principle of “kol kavu’a ke-mechetza al mechetza dami.”  Namely, he asserts that this rule applies only when the prohibited entity was at one point identifiable.  If it had been known that a certain area was the site of an egla arufa, and its location was then forgotten, then seemingly, all areas in question would be forbidden for cultivation.  But since we do not know of any particular area that became forbidden, this case does not fall under the rule of “kol kavu’a,” and we may therefore rely on the statistical majority and permit cultivating the lands of Eretz Yisrael.

            Rav Naftali Chayim Horowitz of Zhikov, in his Mincha Chadasha (Sota 45a), notes this question posed by Rav Shimshon of Chinon, and writes – somewhat surprisingly – that there is no indication that an egla arufa ceremony was ever performed at all.  We have no reason to assume that a situation requiring an egla arufa actually occurred, and so there is not any uncertainty whatsoever regarding the status of the lands of Eretz Yisrael in this regard.  Similarly, Rav Yehonatan Eibshitz, in Kereiti U-peleiti (110:12), discusses this question and writes that it is entirely possible that the mitzva of egla arufa was never performed, and thus there is no concern of agricultural lands being forbidden to cultivate.

            Some questioned this assertion based on the Mishna’s comment towards the end of Masekhet Sota (47a) that when murder became frequent, the law of egla arufa was suspended.  This mitzva applied only when murder was a rare occurrence, and thus once the moral fabric of the Jewish society declined and murder became frequent, the mitzva was no longer practically relevant.  This would appear to indicate that egla arufa was, before that time, observed as a practical matter, seemingly in direct contradiction to the theory advanced by the aforementioned scholars.  The answer, perhaps, is that the Mishna does not mean that egla arufa ceased being practiced once murder became rampant, but rather that it ceased being even a theoretical possibility.  According to this reading, there is no proof that this mitzva was ever practically observed.

(See also Rav Asher Zev’s Schreiber’s Mateh Asher, pp. 35-36)