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SALT 2016 - Parashat Shofetim

Rav David Silverberg


Motzaei Shabbat

            The Torah in Parashat Shoftim reviews the laws of the arei miklat – the cities of refuge where people who accidentally killed would find protection from the victim’s vengeful relatives.  In discussing the topic of arei miklat, the Torah refers to this law with the phrase “devar ha-rotzei’ach” (literally, “the matter of the killer” – 19:4).  The Gemara in Masekhet Makkot (12b) infers from the word “devar,” which can mean “speech,” that the killer must verbally inform the people in the ir miklat where he seeks refuge that he had inadvertently killed as a result of negligence.  More specifically, the Gemara establishes that if the townspeople wish to treat the new arrival with honor – such as if he is a person of stature – he must inform them of why he had come to live with them, that he had negligently killed another person.

            This halakha perhaps reminds us of the need for complete honesty when we introspect and assess ourselves.  Often, we make the mistake of viewing ourselves the way we assume others view us.  At times, this results in harmful low self-esteem and overly harsh self-criticism, when people judge us unfairly without taking into account all the various different factors, of which only we ourselves are aware.  At other times, however, this results in too charitable an assessment.  When people accord us respect and honor, we can easily be misled into thinking too highly of ourselves, assuming that the respect shown to us reflects genuine stature and accomplishment.  The halakha regarding an inadvertent killer perhaps represents the need to remind ourselves of who we are when people treat us with respect.  Of course, we are not required to publicize our failings and shortcomings the way the inadvertent killer is required to inform the townspeople that he was guilty of criminal, fatal negligence.  Nevertheless, we might learn from this halakha to at very least “inform” ourselves of the truth, to remind ourselves that what people see and think of us is not always an accurate reflection of who we are.  The process of introspection requires making an honest assessment based on what we know of ourselves, rather than relying on the respect and compliments we receive from others as a basis for feeling content and satisfied with who we are.

(Based on a sicha of the Tolna Rebbe)


            The Torah in Parashat Shoftim (20:19) issues the prohibition against cutting down fruit-bearing trees, which is the source for the well-known prohibition of bal tashchit – the wasteful destruction of food or other commodities. 

            There is considerable discussion among the halakhic authorities as to whether this prohibition applies to ownerless property.  While intuitively we might have assumed that the Torah forbids destroying usable property regardless of whether anybody legally owns it, the Rosh appears to suggest otherwise.  The context of the Rosh’s comments is a startling Mishna, in Masekhet Middot (1:2), which tells that in the times of the Beit Ha-mikdash, an official would circulate among the Leviyim who stood guard in the Temple throughout the night.  If the official noticed a guard sleeping, he whipped him, and even had the right to burn the guard’s clothes as punishment for his laxity.  The Rosh, in his commentary to Masekhet Tamid (28a), raises the question of why this punitive measure did not transgress the prohibition of bal tashchit, and he answers by invoking the principle of “hefker beit din hefker.”  This means that rabbinical authorities had the legal power to confiscate property or transfer it from one person to another when necessary.  The Rosh does not elaborate, but it appears that in his view, the prohibition of bal tashchit applies only when one destroys something which he or another person owns.  Hence, as Chazal felt it appropriate to allow destroying a sleeping guard’s clothing as a deterrent to laxity in guarding the Temple, they declared a sleeping guard’s garment to be hefker (ownerless), such that it was then permissible to destroy it.  And thus in the Rosh’s view, it seems, the law of bal tashchit applies only to property that is under somebody’s legal possession.

            Rav Tzvi Pesach Frank, in one of his responsa (O.C. 2:102), cites the Aderet (Rav Eliyahu David Rabinowitz-Teomim) as observing that Tosefot appear to disagree with this view.  The Gemara in Masekhet Berakhot (36b) comments that one may not cut down fruit trees during the shemita year, due to the prohibition against wasting shemita produce.  It seems from the Gemara that this is forbidden only due to the prohibition against destroying shemita fruit, and would otherwise be permissible. The question thus arises as to why this would not be forbidden regardless of the laws of shemita, by force of the prohibition of bal tashchit. Tosefot answer that the prohibition of bal tashchit does not forbid cutting down trees containing less than a “kav” (a certain quantity) of fruit, or trees with wood whose value exceeds that of its fruit.  The Gemara therefore instructs that even such trees may not be cut down during shemita, due to the halakha requiring that shemita produce be eaten, and not destroyed. The Aderet observes that Tosefot would never have asked this question if they had followed the Rosh’s view, that the prohibition of bal tashchit does not apply to ownerless property. Halakha treats shemita produce as hefker, and thus, according to the Rosh, the law of bal tashchit is inapplicable to shemita produce. It is forbidden to destroy shemita produce only because of the requirement to eat it, but not because of the prohibition of bal tashchit, and thus, seemingly, Tosefot’s question would not be asked according to the Rosh’s position.

            Rav Frank, however, refutes this proof, noting the distinction between the fruit and the branches.  Although shemita produce is considered ownerless, and is thus not subject to the prohibition of bal tashchit according to the Rosh, the wood of the tree – which is not edible – remains under its owner’s legal possession. Hence, even according to the Rosh, we might question why the Gemara resorted to the special laws of shemita to explain the prohibition against cutting a fruit tree during shemita, as chopping the wood – which still belongs to the tree’s owner – seemingly violates bal tashchit.

            Additionally, this reading of the word “yado” expresses the broader theme of equality that features prominently in the laws of shemita and yovel. Once in seven years – and in more pronounced form, once in fifty years, on the jubilee – we are reminded that as the land belongs to the Almighty, we are all, essentially, equal. Therefore, as the Torah discusses in Parashat Behar, all agricultural lands and produce are declared ownerless during the shemita year, and on yovel all property is returned to its original owner, such that nobody ends up wealthier or poorer than anybody else. For the same reason, all servants are freed on the jubilee, reminding us that ultimately, we are all servants of the Almighty and thus do not have the right to exert control over one another. Rav Mecklenberg’s explanation of shemitat kesafim demonstrates how this mitzva, too, expresses this theme of shemita, as it is intended to break the lender’s hold over the borrower, reminding us that we are all God’s servants and fully and exclusively under His control and authority.


            The Torah in Parashat Shoftim (16:21) introduces a prohibition against planting a tree alongside the altar, which Chazal understood as including building a structure in the azara – the Temple courtyard (Tamid 28b).  The Yalkut Shimoni, here in Parashat Shoftim (907), comments that this prohibition applies even to a sukka, which may not be constructed in the azara.

            The Panim Yafot notes that earlier (end of Parashat Re’ei), the Yalkut Shimoni comments that sacrificial food must be eaten in a sukka during Sukkot just like ordinary food.  At first glance, these two passages of the Yalkut Shimoni seem contradictory.  How can sacrificial food require a sukka if the Torah forbids constructing sukkot in the Temple courtyard, where sacrificial food is eaten?  The Panim Yafot writes that we are compelled to distinguish in this regard between the two basic categories of sacrificial food – kodashei kodashim and kodashim kalim.  The sacrifices in the category of kodashim kalim may be eaten anywhere in Jerusalem, and do not have to be eaten specifically in the Temple courtyard, and, as such, they require a sukka during Sukkot.  By contrast, kodashei kodashim, which may be eaten only in the azara, necessarily are eaten without a sukka, given the prohibition against building sukkot in the azara.

            Rav Avishai Maitlis, in Ve-darashta Be-chagekha (p. 34), cites his father as explaining this distinction based on the famous rule of “teishvu ke-ein taduru” – the mitzva of sukka requires treating the sukka as one’s home.  Since the kohanim are obligated to eat kodashei kodashim in the Temple courtyard, these are not foods that are normally eaten at home.  As such, unlike other meals, the kohanim’s consumption of this sacrificial food does not require a sukka, and thus kodashei kodashim are eaten without a sukka.

            The Minchat Kena’ot commentary to Masekhet Sota (41b) disagrees with the Panim Yafot, and maintains that the kohanim did, in fact, eat their sacrificial food in sukkot constructed in the azara.  He notes that the prohibition against building in the azara applies only to building wooden structures, and thus it would be entirely permissible to build a sukka out of other materials, such as stone.  And although the sekhakh requires vegetation, the Minchat Kena’ot cites sources that state that the prohibition is limited to building with wood derekh gedilatan – the way they are grown, meaning, with the branches upright.  The sekhakh is formed by laying the wood horizontally across the top of the structure, and thus this would not transgress the prohibition against constructing a building in the azara.  Accordingly, it is entirely possible to construct a sukka in the azara in a permissible manner, and so even kodashei kodashim could be eaten in a sukka during Sukkot.

(See also Rav Asher Anshel Schwartz’s Ma’adanei Asher, Parashat Shoftim, 5768)


            Yesterday, we noted the question raised by the Panim Yafot concerning a comment by the Yalkut Shimoni in Parashat Shoftim (907).  The Torah forbids planting a tree alongside the altar in the Mikdash (16:21), and the Gemara (Tamid 28b) establishes that this prohibition includes building a structure in the Temple courtyard, where the altar stood.  The Yalkut Shimoni remarks that this applies even to a sukka, which may not be built in the area of the azara.  Earlier, however, in the end of Parashat Re’ei, the Yalkut Shimoni comments that kohanim eating sacrificial food during Sukkot must do so in a sukka.  The question thus arises as to how kohanim were able to fulfill this requirement when eating those sacrifices (kodashei kodashim) that may not be eaten outside the azara.

            Rav Aharon Levine (the “Reisha Rav”), in his Birkat Aharon (Berakhot, 197:6), suggests that these different passages reflect different views regarding the nature of the sukka obligation.  In several contexts in Masekhet Sukka, the Gemara notes that the Sages were divided on the issue as to whether the sukka required on Sukkot must be a “dirat keva” – a structure resembling a permanent residence – or a “dirat arai” – a temporary structure.  The Gemara (Sukka 7b) points to several different aspects of the sukka’s construction that depend on this debate.  For example, the Gemara views the debate in the opening Mishna of Masekhet Sukka as to the status of a very tall sukka (twenty amot or higher) as a reflection of this question.  If the sukka is to be a permanent structure, then a very tall sukka is acceptable, whereas according to the view that the sukka must have the qualities of a temporary dwelling, a tall building is invalid, as people do not construct temporary dwellings in such a fashion.  (This is, indeed, the accepted ruling, as Halakha follows the opinion that a sukka must be constructed as a “dirat arai.”)

            Rav Levine suggests that the question of “dirat keva” and “dirat arai” directly affects the question of whether a sukka may be constructed in the azara.  The prohibition against building structures in the azara, Rav Levine writes, applies only to permanent structures; the Torah allows constructing a temporary dwelling in the Temple courtyard.  Therefore, it is only according to the view that the sukka must have the qualities of a “dirat keva” that sukkot may not be built in the azara, as according to the view of “dirat arai,” this is permissible.  Hence, it is possible that the Yalkut Shimoni in these two passages is expressing the two different views among the Tanna’im in this regard.

            Some (including Rav Levine himself, in Ha-derash Ve-ha’iyun, Parashat Emor) have noted that in Sefer Nechemya (8:16), which tells of the first Sukkot celebration held in Jerusalem after the Jews’ return from the Babylonian exile, we read that sukkot were built on people’s rooftops, in people’s courtyards, and “in the courtyards of the House of God.”  This seems to imply that sukkot were built in the courtyard of the Beit Ha-mikdash for the kohanim, thus proving that it was, in fact, permissible to construct a sukka in the Temple courtyard.

(See also Rav Asher Anshel Schwartz’s Ma’adanei Asher, Parashat Shoftim, 5768)


            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)           


            The Torah in Parashat Shoftim reiterates the various gifts that must be given to the kohanim, commanding that one give to a kohen “the first of your grain, your wine and your oil,” as well as “the first of your sheep’s shearing” (18:4).

            Rav Avraham Saba (a scholar from the generation of the Spanish Inquisition), in his Tzeror Ha-mor, makes an intriguing comment to explain the purpose of these gifts.  He writes that since the kohanim performed the service in the Beit Ha-mikdash outdoors, in the Temple courtyard, without shoes, they naturally felt very cold in the winter.  Part of the intent of these gifts, Rav Saba suggests, were to address this need.  Drinking wine warms a person’s body, and the wool received from the first shearing of sheep could be used as warm clothing.  Additionally, in the previous verse, the Torah requires giving kohanim certain portions of any animal which one slaughters (zero’a, lechayayim and keiva), and Rav Saba writes that as the kohanim were also the nation’s scholars, and intensive engagement in Torah depletes one’s energy, the kohanim were given portions of meat to maintain their physical strength.

            These comments of the Tzeror Ha-mor perhaps remind us to think carefully about other people’s conditions in order to identify what they are lacking.  People might not intuitively realize that the kohanim suffered from the cold while performing the service in the Temple courtyard during the cold, rainy Jerusalem winter.  We naturally focus our attention on meeting our own needs, and are not always attuned to the needs and concerns of other people, especially those whose lives are much different than ours.  According to the Tzeror Ha-mor, the priestly gifts were intended to draw the people’s attention to the needs of the kohanim, who lived much different lives than they did.  These requirements called upon the people to think about the conditions in which the kohanim lived, take note of the challenges these conditions posed, and to assume the responsibility to help the kohanim overcome these challenges.  And these mitzvot remind us that we must try, as much as possible, to understand and take into consideration the situation of people whose lives are different from ours, so we can accurately identify their needs and do what we can to provide them.

(Based on a sicha by the Tolna Rebbe)


            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.







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