Shiur #09: The Stages of the Writing of the Rambam’s Commentary on the Mishna
- Continuation of the Editing of the Commentary on the Mishna following its Publication
The Rambam completed his Commentary on the Mishna when he was thirty years old, in the year 1168. It immediately began to be published for the general populace. However, it is clear from the language of the Rambam in a number of places that he continued to edit and modify this commentary over the course of his lifetime. For instance, in the introduction to the chapter of “Chelek,” the final chapter of tractate Sanhedrin, the Rambam mentions his work Moreh Nevukhim, The Guide for the Perplexed, which he completed at age fifty four: “And know that the fundamental basis for the Torah of Moshe our teacher… as I have explained and clarified in the Guide.” Clearly, the Rambam added this comment to his commentary many years after its initial publication.
An additional example of this phenomenon appears in the Rambam’s commentary to tractate Menachot chapter 4: “But the phylacteries of the hand and the head are two mitzvot, as we have clarified in our work on counting the mitzvot (Sefer Ha-mitzvot).” Here, the Rambam references Sefer Ha-mitzvot, which was also written after the initial publication of the commentary on the Mishna.
The Rambam also writes this explicitly in a letter to his student Rabbi Yosef, son of Rabbi Yehuda, which was designed to defend the Mishneh Torah from the attacks of the sages of Baghdad. Among his other points, he also addresses some complaints against the Commentary on the Mishna:
And this complaint against the Commentary on the Mishna is solely because I modified it in [a few] places. The Creator of all knows that in most cases, I followed the Ge’onim, such as Rabbeinu Nissim in the Megillat Setarim, and Rav Chefetz in his Sefer Ha-mitzvot, and others whom it is difficult for me to remember. And even if I erred, I do not claim that I reached my final complete [understanding] initially and that I never erred; on the contrary, anything which was explained to me that was not as I had written, I retracted for good, in any matter in my work and my scientific [works]. (Iggerot Ha-Rambam, Shilat edition, pp. 305-306)
The Rambam here testifies that he modified his commentary after it was completed, but he does not see any problem with this. On the contrary, he sees this as the proper way of cleaving to the truth, that one must reconsider and possibly change one’s opinion when this is necessary. Indeed, the phenomenon of emendations and retractions exists in most of the Rambam’s other works as well. This characteristic of the Rambam to admit to the truth and to retract a ruling if he is convinced it is erroneous can also be derived from the words of his son, Rabbi Avraham, in his work, Ha-maspik Le-ovdei Hashem, regarding a particular halakhic issue where his stance differed from his father’s:
And if my father, my teacher, zt”l, would have heard it [my claim], he would have agreed, as it says: And concede the truth. And we constantly saw him agreeing to the lowest of his students regarding the truth, despite his wealth of knowledge, which did not stand in the way of others disagreeing with his opinions, and “who understands errors?” (Ha-maspik Le-ovdei Hashem, Feldheim Publications, 5768, p. 70).
As we have seen, the Rambam himself testifies to this phenomenon, but the scope of these emendations has only been revealed in more recent generations. In 1948, R. Saul Lieberman wrote about this matter at length after obtaining a copy of the Commentary on the Mishna from Naples. This manuscript included comments and corrections that were ultimately revealed as modifications that the Rambam himself had made to his commentary.
In addition, manuscripts of the Commentary on the Mishna were discovered that were identified as containing the actual handwriting of the Rambam himself. In this manuscript, the original formulation of the commentary is clear, along with the numerous emendations that the Rambam inserted, in the form of erasures, additions between the lines, additions in the margins, and the like. Rav Kapach claims that four different editions of the commentary can be identified using this manuscript and comparing it with other Sephardic and Yemenite manuscripts as well as with the translations. Rav Shilat, however, disagrees, and argues that the attempt to discern various stages of development is entirely artificial. In any case, even Rav Kapach notes that the Rambam did not draft multiple versions of the commentary in the normal sense, as the Rambam edited and modified his commentary all of his life.
The phenomenon of the corrections and retractions of the Rambam, the extent of which was only discovered in recent generations, provides a new dimension to an issue that many acharonim addressed: The many contradictions between the various versions of the Commentary on the Mishna, as well as contradictions between the Commentary on the Mishna and the Mishneh Torah. Since the Commentary on the Mishna was publicized and disseminated during his lifetime, many people obtained, transcribed, and ultimately translated the first draft that the Rambam had written. However, the modifications later made by the Rambam were not always known or accepted. Therefore, large discrepancies exist between the original manuscript written by the Rambam himself and the standard version of the Commentary on the Mishna. We will examine a number of the most striking examples of this below.
- Tefillin Shel Rosh and Tefillin Shel Yad (Head Phylacteries and Hand Phylacteries)
The Mishna (Menachot chapter 4) cites a list of halakhot that all consist of a number of details that do not impede one from fulfilling the mitzva even if one of the details is lacking. One of the examples cited is that the one who is lacking tefillin shel yad is not impeded from fulfilling the mitzva of wearing the tefillin shel rosh on his head, and the lack of tefillin shel rosh does not impede the fulfillment of the mitzva of wearing the tefillin shel yad on one’s arm. The Rambam (Hilkhot Tefillin 4:4) codifies this halakha as follows: “The [lack of] tefillin shel rosh does not impede the [fulfillment of the mitzva of the] tefillin shel yad, and the [lack of] shel yad does not impede the [fulfillment of the mitzva of the] shel rosh, because they are two separate mitzvot.” The Rambam thus rules that each of the components of the tefillin may be worn independently of the other, because they are two distinct mitzvot. He does not mention any limitation to this principle.
As noted by the Kesef Mishneh there, the Gemara (Menachot 44a) cites Rav Chisda’s statement that this ruling of the Mishna is true only if he has both parts of the tefillin. However, if one of them is missing, this does inhibit the proper fulfillment of the mitzva. The Gemara then rejects this opinion. The Kesef Mishneh explains that the Rambam rules according to the conclusion of the Gemara, which is against the ruling of Rav Chisda. However, he continues by saying: “Although in the Commentary on the Mishna of our teacher, it is written that if he does not have it [the other part of the Tefillin], it does impede [the mitzva], this is a scribal error, and in the Arabic version, it [that sentence] is not there.”
In the version of the Commentary on the Mishna that the Kesef Mishneh had, the text states that if one lacks one of the two components of the Tefillin, it impedes the other component from being properly fulfilled, in accordance with the opinion of Rav Chisda. He therefore struggles with the contradiction between the Commentary on the Mishna and the ruling in the Mishneh Torah. The Kesef Mishneh then answers that the explanation given in the Commentary on the Mishna is a scribal error, and brings a proof to this from the Arabic version of the commentary, where this statement does not appear.
However, Rav Kapach notes that from the manuscript of the Rambam, it seems that this was not a scribal error, but a clear instance of the Rambam retracting his original position. The printed versions of the Commentary on the Mishna present the original opinion of the Rambam as ruling in accordance with Rav Chisda:
And that which they said that the [lack of] tefillin shel yad does not impede the [fulfillment of the mitzva of the] tefillin shel rosh, [this is] as long as he has both of them with him, and then he puts on whichever he wants alone for as long as he wants. However, if he lacks the shel rosh or shel yad, then it is not permitted for him to wear one until he makes the other, as perhaps he will err and rely on one all the time. (Rambam, Commentary on the Mishna, Menachot 4:1)
The Rambam later retracted these words, a change that is expressed in the Arabic version with which the Kesef Mishneh was familiar. In fact, this is the version that appears in the Rav Kapach edition:
But the tefillin shel yad and the tefillin shel rosh are two [separate] mitzvot, as we have explained in our work of Minyan Ha-mitzvot. And therefore, whenever he puts on one of them, he has fulfilled one positive mitzva and fulfilled his obligation. (Rambam, Commentary on the Mishna, Menachot 4:1 in Rav Kapach edition)
- Produce that Grew as a Result of Prohibitions Violated during the Shemitta Year
The Mishna (Shevi’it 6:1) divides the land of Israel into three distinct areas with regard to the laws of the Shemitta year: A) The area which those who ascended from Babylonia in the second Temple period, known as the olei Bavel, controlled. This region is subject to all of the halakhot of Shemitta. B) The area that those who ascended from Egypt in the time of Moses, known as the olei Mitzrayim, controlled, but was not inhabited by the Jews during the second Temple period. This region was subject to some of the laws of Shemitta, but not all of them. C) The area “from the river until Amana,” which is considered chutz la-aretz (outside of Israel). This region is not subject to any of the halakhot of Shemitta. According to the Mishna, the halakhic difference between category A and category B is that the former “may not be eaten and not worked,” while the latter is “eaten, but not worked.” The printed versions of the Rambam explain these terms in the following manner:
And the matter that they said, “it may not be eaten and not worked,” is that it is forbidden for us to toil on that land, and if another worked it in a prohibited manner, it is forbidden to eat whatever grew. (Rambam, Commentary on the Mishna, Shevi’it 6:1)
In other words, the meaning of the words “may not be eaten” is that it is forbidden to consume crops that grew as a result of prohibited labor during the Shemitta year. However, the Rambam rules differently in the Mishneh Torah:
Any [place] that those who ascended from Babylonia controlled until Keziv is forbidden in labor [during Shemitta], and all crops that grow by themselves are forbidden to be consumed. (Rambam, Hilkhot Shemitta Ve-yovel 4:26)
According to the Rambam’s explanation, the words “may not be eaten” is a reference to the prohibition of sefichim, crops that grow by themselves without any human intervention. Evidently, the Rambam in the Mishneh Torah explained the Mishna differently than he did in the Commentary on the Mishna. The Rambam in fact explicitly attests to changing his mind about this matter in a responsum where he was asked about this comment in the Commentary on the Mishna.
The language of the Mishna is: “There are three areas with regard to Shemitta…” What we have always heard with regard to its explanation was what Rav Yitzchak Ghiyyat mentioned, who said that this is what all of the Sages explained, which is what we have upheld, and that is that the matter of “it may not be eaten and may not be worked” is that one who transgressed and worked the land during the seventh year, the crops that grow are forbidden to consume. And when at that time, we analyzed every halakha very carefully in our great work, the explanation of this Mishna became clear… (Iggerot Ha-Rambam, Shilat Edition, pp. 211-212).
The Rambam explains that he initially explained the Mishna according to the explanation of Rav Yitzchak ibn Ghiyyat, that the intention is to forbid consumption of anything that was worked in a forbidden manner. However, when he wrote the Mishneh Torah, he carefully analyzed this matter, and came to a different conclusion. Indeed, Rav Kapach writes in his comments to the Commentary of the Mishna that in the manuscript written by the Rambam himself, one can discern that the Rambam initially explained the Mishna to mean that what was worked during Shemitta is forbidden, but he then modified that and explained the Mishna again, as is evident from Rav Kapach’s version:
And know, that anything that the ground [causes to] sprout during the seventh year is permitted to be consumed according to the Torah, as it is stated, “and the rest of the land shall be to you for eating (Vayikra 25:6).” And when people were deceptive and planted crops during Shemitta, and said that this crop is only growing from what remained in the ground, or from what generally grows a second time from the roots that remain in the ground, they [the Sages] forbade all the seeds, such as grain, beans, and the like that sprout [on their own] during Shemitta, and they are called sefichim. It is has now been explained to you that what is eaten from the produce of the Shemitta year are only fruits of the tree, or vegetables or sefichim that have a presumption of being ownerless, which people do not generally plant. However, other sefichim that people generally plant are forbidden to consume. And remember this principle always. (Rambam, Commentary on the Mishna, Shevi’it 6:1, Rav Kapach edition)
- “Early” Prozbul and “Late” Prozbul
The Mishna (Shevi’it 10) discusses the rules of shemitat kesafim, the Torah directive that any debts that one Jew owes another are canceled during the Shemitta year, as well as prozbul, a document drafted by Hillel with the goal of preventing this cancellation of debts. The prozbul essentially allows the lender to transfer the debts that he is owed to the beit din (court), which can prevent the debts from being cancelled. Mishna 5 rules that an “early” prozbul is valid, while a “late” prozbul is invalid. In the Commentary on the Mishna, as it appears in the printed versions, the Rambam defines the terms “early” prozbul and “late” prozbul as follows:
An “early” prozbul is when one writes a prozbul first, and then lends someone money. And a “late” prozbul is when one lends the money first, and it becomes a debt, and then he writes a prozbul. This is invalid, because it becomes a debt [first], and it becomes obligated through the rules of debts to be cancelled during Shemitta. (Rambam, Commentary on the Mishna, Shevi’it 10:5)
According to this explanation, an “early” prozbul is a prozbul document that was written prior to the loan, and a “late” prozbul is a prozbul written following the loan. Thus, one must transfer one’s debts to the beit din prior to executing the loan in order for the prozbul to be effective. However, the Rambam in the Mishneh Torah explains the Mishna in the opposite manner:
If one wrote the prozbul first, and then lent [the money], it is not effective. Rather, [Shemitta] cancels the loan until one writes the prozbul after lending [the money]. You are found saying that any loan that precedes the prozbul is not cancelled with this prozbul, and if the prozbul precedes the loan, the [loan] is cancelled with this prozbul. Therefore, an “early” prozbul is valid, and a “late” prozbul is invalid. How so? If one wrote it in Nissan, but made its time earlier [by dating it] from Adar, it is valid, as he has decreased his power that it [the debt] is only not cancelled until Adar. However, if he delayed its time and wrote it from Iyyar, it is invalid, as he has increased his power, as it [the debt] is not cancelled until Iyyar improperly, as its law is that it is only not cancelled until Nissan, at the time of delivering the words to the beit din. (Rambam, Mishneh Torah, Hilkhot Shevi’it 9:22-23)
The Rambam here rules in the exact opposite manner of his ruling in the Commentary on the Mishna. First, he establishes that a prozbul is valid only when it is written following the loan. Second, he explains the terms “early” and “late” completely differently: “Early” means a document that is dated prior to the time that the loan was actually given, while “late” refers to a document that is dated following the time that the loan was actually given. The reason that such a document is invalidated is that by delaying the date written on the document, the lender creates the impression that the prozbul was written following the loan, like a valid prozbul, while in practice it was written prior to the loan, which is invalid. This is a clear contradiction between the Mishneh Torah and the Commentary on the Mishna, and the Rambam was asked about this:
Instruct us, our master, what the explanation of an “early” and “late” prozbul are, since we have seen your words of splendor in the work [i.e., the Mishneh Torah] and we have found the opposite in the Commentary on the Mishna… instruct us, your glory, which of them is the correct approach upon which we should rely, and your reward shall be double from heaven. (Iggerot Ha-Rambam, Shilat Edition, p. 647)
This is how the Rambam responded to this inquiry:
What we have written in the work [i.e., the Mishneh Torah] is correct, and about this there is no doubt. And this is what we wrote in the Commentary on the Mishna. And that which is in your hands is the first version, which departed from our hands before we made it precise. And we followed in that piece what the author of the Sefer Ha-mitzvot, Rav Chefetz, wrote, and it is an error of his, and due to a lack of analysis on our part, we followed him. But after we analyzed the passages and read them carefully, it became clear that what we wrote in the work [i.e., the Mishneh Torah] is correct, and we corrected the Commentary on the Mishna accordingly. (Iggerot Ha-Rambam, Shilat Edition, p. 647)
The Rambam clearly states here that he corrected his ruling in the Commentary on the Mishna, and this is confirmed by Rav Kapach’s version of the Rambam’s own manuscript:
An “early” prozbul is where one writes a prozbul today and writes in it an earlier date. And a “late” [prozbul] is where one writes it today and writes in it a later date. And the conditions of the prozbul are that it be written after the debt has preceded it [i.e., the loan has been given], but a loan that is taken after the time of the prozbul is cancelled until he writes another prozbul following it. Therefore, a “late” prozbul is rendered invalid, because it does not cancel a debt whose rule is that it should be cancelled, because the debt was formed following the writing of the prozbul. (Rambam, Commentary on the Mishna, Shevi’it 10:5, Rav Kapach edition)
- Derishot, Chakirot, and Bedikot of Witnesses
The Mishna in Sanhedrin chapter 4 discusses the differences and similarities between monetary cases and cases of capital punishment that are brought to a beit din (religious court). It begins by stating: “Both monetary cases and cases of capital [punishment] are subject to derisha (inquiry) and chakira (interrogation).” There are no detailed explanations of this rule later in the chapter, but the Mishna in the beginning of chapter 5 states the following:
They would examine them [the witnesses] with seven chakirot (interrogations): In which seven-year period [did you see the crime], what year, what month, which [day of] the month, which date, which hour, which location? Rabbi Yosei says: which date, which hour, which location? Did you recognize him, did you warn him? Regarding one who worshiped idolatry: Which idol did he worship, and how did he worship it?
Whoever increases the [number of] bedikot (examinations) is praiseworthy. [There was an] incident where Ben Zakkai examined [the witnesses concerning] the stems of the figs. And what is the difference between bedikot and chakirot? [With regard to] chakirot, one who says “I do not know” invalidates his testimony. [With regard to] bedikot, one who says “I do not know,” and even if two say, “we do not know,” their testimony is valid. Both chakirot and bedikot, when they contradict each other, their testimony is invalid. (Mishna Sanhedrin 5:1)
This Mishna mentions two concepts: Chakirot (interrogations) and bedikot (examinations), and differentiates between them in the case where one of the witnesses does not successfully respond to the questions he is asked. However, the concept of derisha (inquiry), which appeared in the previous Mishna, does not appear here, and the relationship between “derisha and chakira,” and “chakirot and bedikot” is unclear. An analysis of the Commentary of the Rambam on these mishnayot indicates that his interpretation of them changed over time. In the first edition of the Commentary of the Rambam on chapter 4, this is the formulation used:
They said: “Both monetary cases and cases of capital [punishment] are subject to derisha and chakira.” This is the Torah rule, but to prevent people avoiding lending money, they said that only the chakirot are asked with regard to monetary cases, but derishot (inquiries) are not… and the difference between derisha and chakira is that chakira concerns matters that add something to the law, like the amount he lent and when he lent… and derisha is the particular nature of matters that do not add anything, such as our question of which garment was the lender or borrower wearing at the time he received the money; whether one of them was sitting or standing… (Rambam, Commentary on the Mishna, Sanhedrin 4:1)
The Rambam distinguishes between derisha and chakira by explaining that chakira refers to questions that are associated with the actual incident that occurred, while derisha refers to questions designed to examine the truth of the testimony, but do not relate to the incident itself. As Rav Kapach notes, the Rambam here does not mention the concept of bedikot, and they seem to be with the same as the derisha mentioned in chapter 4.
The source of the Rambam that the Sages altered the halakha with regard to monetary cases in order “not to close the door to borrowers” is the following Gemara in Sanhedrin:
Rabbi Chanina said: According to Torah law, both monetary cases and capital cases are subject to derisha and chakira, as it is stated: There shall be one law for you (Vayikra 24:22). And why did they say that monetary cases do not require derisha and chakira? So that that you do not close the door in the face of borrowers. (Sanhedrin 3a, 32a)
However, it is evident that the Rambam altered the language of the Gemara. According to Rabbi Chanina, they canceled the obligation for derisha and chakira, while according to the Rambam, they only canceled the obligation for derisha, which he identifies as the bedikot, but they did not cancel the obligation of chakirot.
In the later version of his commentary, though, the Rambam retracts:
And the distinction between derisha, chakira, and bedika is that chakira and derisha are matters that add substance to the case, such as the time, the method of lending, and the location, i.e., in which city. And bedika is being particular with issues that do not add substantially, such as our question of which garment was the lender or borrower wearing when he [the borrower] received the money; was one of them sitting or standing; was the money inside a mesh garment in a wool garment, and anything like these matters, where being particular about them does not add anything to the case. (Rambam, Commentary on the Mishna, Sanhedrin 4:1, later version)
Here, the Rambam explains that there are two distinct concepts: 1. Derisha and chakira, which according to Torah law apply to monetary cases as well, and are defined as “matters that add substance to the case.” 2. Bedika, which is entirely irrelevant to monetary cases according to Torah law as well. These are defined as “being particular with issues that do not add substantially.” In other words, what the Rambam originally referred to as derisha is now defined as bedika, and he thus distinguishes between derisha and bedika.
This interpretation better explains two aspects of this issue: A) It better matches the language of the Gemara with regard to the canceling of derisha and chakira “in order not to close the door in the face of borrowers.” B) It better matches the language of the Mishna in chapter 5 that mentions the concept of bedika but not that of derisha.
However, if it is true that the latter explanation better fits the language of the mishnayot, what was the motivation for the Rambam’s first explanation? Why did he originally identify bedika with derisha? It seems that the Rambam initially felt that the Mishna at the beginning of chapter 4 and the Mishna at the beginning of chapter 5 should be understood as one discussion, like saying that the Mishna in chapter 5 elaborates upon the same topic as the Mishna in chapter 4. However, in the later version, the Rambam changed his mind due to the difficulties mentioned above, and preferred to explain derisha and chakira as concepts closely associated with one another. The Mishna in chapter 5 then specifies the nature of chakira, and subsequently introduces a new concept, bedika, which is limited to capital cases according to the Rambam.
 See also pp. 647-649.
 R. Saul Lieberman, Hilkhot Ha-Yerushalmi La-Rambam, New York 5708, pp. 6-15.
 Pocock Manuscript 205, Huntington Manuscript 117, Sassoon Manuscript 72 and 73 (which are currently titled as Israel National Library 45703.172). These manuscripts were published in a facsimile edition by David Sassoon in 3 volumes (Copenhagen, 5716, 5721, and 5726), and Rav Kapach based most of his translation upon them.
With regard to the history of these manuscripts and for a summary of the identification of these manuscripts as written by the Rambam himself, see: Simon Hopkins, Perush Ha-Rambam Le-Masekhet Shabbat, Tiyutat Ha-perush Lefi Keta’im Otographim Mi-genizat Kahir, Jerusalem, 2001, pp. 15-19, and the literature cited there. There are two primary proofs that this manuscript was actually written by the Rambam: A) At the beginning of the commentary on Seder Zera’im, explicit testimony appears from the Rambam’s great-grandson, Rabbi Shlomo, the son of Rabbi David, who was the son of Rabbi Avraham ben Ha-Rambam, who testifies that this is in fact the case. B) A comparison of the handwriting used in this manuscript to other manuscript passages known to have been written by the Rambam directly indicates that the manuscripts are identical.
 Rav Kapach edition of the Commentary on the Mishna, p. 16.
 Rav Yitzchak Shilat, Tikkun Mishna Perush Ha-Rambam Le-Avoda Zara Ve-Horayot, Jerusalem, 5762, p. 21.
 Professor David Henschke has expanded upon this approach in a number of articles as a possible resolution to the contradictions between the various works of the Rambam. See, e.g., David Henschke, “Le-darkei Pitronan shel setirot Be-Mishneh Torah La-Rambam,” Sinai 112 (5753), pp. 58-73; “Le-chashivuto Ha-hilkhatit shel Ha-Rambam: Bein Dinamiyut Penimit Le-shamranut Memasdit—Le-tiva shel Ha-halakha Ha-shekua Be-Sefer Ha-mitzvot,” in Ha-Rambam: Shamranut, Mekoriyut, Mahapchanut, ed. Aviezer Ravitzky, Jerusalem 5769, pp. 119-153.
 The Tanna’im and Rishonim have disagreed as to whether the prohibition of consuming sefichim is a biblical one or a rabbinic one. According to those opinions that it is a rabbinic prohibition, it is designed to prevent a situation where people who planted during Shemitta and have violated a Torah prohibition will claim that this produce grew by itself and is therefore permissible to consume.
 Sefer Ha-Ner, written by Rav Yitzchak ibn Ghiyyat.
 This example is discussed by Rav Kapach in his edition of the Commentary on the Mishna, Zera’im, p. 164, note 22, as well as by Professor Isadore Twersky, Introduction to the Code of Maimonides, New Haven, 1980, p. 16.
 It would seem that this refers to the Jerusalem Talmud, Shevi’it 10:3, where this explanation of the Mishna is cited. The Radbaz notes in his commentary on the Mishneh Torah that the Rambam and Rav Chefetz apparently followed the formulation of Rabbi Shimon ben Gamliel found in the Tosefta (8:10).
 Rav Kapach (ibid.) says that many new versions of the Rambam’s words are evident from this manuscript, from which it is possible to conclude that there were four distinct editions of the commentary.
 This example is discussed in Yuval Sinai’s article, “Chakirot, Bedikot, and Derishot: Perek Be-darkei Gibush Hilkhot Ha-Rambam,” Sidra 21 (2006), pp. 35-50.
 For additional motives as to the Rambam’s tendency to retract when he feels it appropriate, as well as an in-depth discussion with regard to additional modifications made by the Rambam, see Yuval Sinai’s article referenced in the previous footnote.