PARASHAT KI TETZE

By Rav David Silverberg

            Among the many laws presented in the Parashat Ki-Teitzei is the prohibition to marry a petzu’a daka (man whose genitals are crushed – 23:2).  Different traditions exist as to the precise spelling of the word daka in this verse, whether the final letter should be an alef or a hei.  This issue is discussed at length in the Minchat Shai commentary to this verse.  The Radak, in his grammatical treatise “Sefer Ha-shorashim,” wrote that the proper spelling is with an alef, and this is also the spelling in the Aleppo Codex.  In most other Sephardic Torah scrolls, however, the word is written with a hei, and this was indeed the view taken by the Chida (Rav Chayim Yosef David Azulai), in his work on the laws of Torah reading (Le-David Emet, 11:16).  The Chida adds that if the only available Sefer Torah is one in which the word is spelled with an alef, then it may be used, but the berakhot should not be recited in such a case.

            The work Teshuva Mei-ahava (71) supports the position that daka is spelled with a hei, drawing proof from a verse in Sefer Bamidbar (11:8) that describes Benei Yisrael crushing the manna in a mortar in preparation for eating – “dakhu ba-medokha.”  It seems clear that the grammatical root of this verb is d.kh.h., and we might therefore conclude that the correct spelling of daka in our context, where it is used to mean “crushed,” is with a hei.  Nevertheless, the Teshuva Mei-ahava concedes that a Sefer Torah in which the word is spelled with an alef is valid (as opposed to the Chida, who held that no berakha is recited when using such a Torah scroll).

            Rav Matis Blum, in his Torah La-da’at – Li-r’ot Uzekha U-khvodekha, cites the work She’eilat David as proposing a theory to explain both sides of this debate.  Namely, this question revolves around the issue of whether the word daka refers to the organ in question, or to the specific condition.  The root d.k.a. (spelled with an alef), as we know from several contexts, means “lowliness.”  (See, for example, the famous verse in Yeshayahu 57:15 – “ve-et daka u-shfal ru’ach.”)  Thus, according to this spelling, the term petzu’a daka means, “injured in his lower parts.”  However, the root d.k.h. spelled with a hei, as mentioned earlier, has the meaning of “crushed,” and therefore according to this spelling, the phrase petzu’a daka should be read as, “injured through crushing.”  It emerges, then, that these two spellings stem from different approaches regarding the precise definition of this phrase.

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            The Torah in Parashat Ki-Teitzei introduces the obligation of ma’akeh, constructing a fence around one’s roof to protect against falling (22:8).  The Sifrei, commenting on this verse, writes that the Torah’s specific reference to a roof in this context comes to exclude ramps from the obligation of ma’akeh.  One is required to construct a protective fence only around flat rooftops, but not around ramps or staircases.  The reason, as Malbim and Netziv explain, is that people generally make a point of exercising caution while walking up or down a ramp.  Rooftops, however, at least in Talmudic times, were often used for performing various activities, and while concentrating at the task at hand one might likely not take the precautions necessary to avoid falling.  Therefore, the Torah requires fences only around rooftops, and not around ramps and staircases.

            However, according to the commentary of Rabbenu Hillel to the Sifrei, the Sifrei did not actually impose this limitation on the mitzva of ma’akeh.  Rabbenu Hillel explains the Sifrei as referring specifically to the ramp leading to the altar outside the Beit Ha-mikdash.  It was specifically this ramp that did not require a ma’akeh, whereas all other ramps must, indeed, be surrounded by guardrails.  A number of more recent writers, including the Minchat Chinukh (546) and Torah Temima, in fact cite the Sifrei itself as commenting only about the ramp of the altar.  Similarly, Rabbenu Yona, in his Sefer Ha-yir’a, writes that one must ensure to place guardrails around staircases and ramps.

            Other Rishonim, however, including the Yerei’im (234) and Semag (asin 209), explicitly exclude ramps from the obligation of ma’akeh.

            A third position is taken by the Chayei Adam (15:24).  He applies the Sifrei’s comment to all ramps and staircases, and not only the ramp to the altar, but claims that the Sifrei exempted only the area at the top of the ramp, where people step off and onto the ramp.  According to the Chayei Adam, one must construct guardrails along the sides of ramps and staircases, as it is only the place where the ramp meets the roof or higher floor that the Sifrei excludes from the ma’akeh requirement.  Although people generally exercise caution as they walk up or down a ramp or staircase, there is still the danger of falling off the sides.  The Sifrei meant only that the ramp around the roof does not have to include an area where there is a staircase or ramp going down, as people will pay attention near the top of the ramp or staircase, and falling is thus unlikely.

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            As mentioned yesterday, the Torah in Parashat Ki-Teitzei introduces the obligation of ma’akeh, which requires erecting a fence or parapet around one’s rooftop to protect against the risk of falling (22:8).

            A fascinating and surprising halakha concerning ma’akeh appears in the work Shibolei Ha-leket (Rav Tzidkiya ben Avraham, Italy, 1230-1300), amidst his discussion of the laws of Chanukah (185).  After addressing the prohibition against making personal use of the light of the Chanukah candles, the Shibolei Ha-leket comments that it is similarly forbidden to treat other mitzva articles in a degrading fashion, such as by stepping on them.  As examples, the Shibolei Ha-leket lists ma’akeh, tzitzit and sukka.  It thus emerges that according to the Shibolei Ha-leket, one may not treat the parapet around his rooftop disrespectfully, as it has the status of a formal cheftza shel mitzva (mitzva object).

            Rav Yitzchak Weiss, in his Minchat Yitzchak (10:52), notes that this ruling of the Shibolei Ha-leket appears nowhere else in halakhic literature, and we have no tradition of people ensuring to treat their ma’akeh respectfully, as is required regarding mitzvot such as tzitzit, lulav and sukka.  Rav David Mandelbaum, in his Pardes Yosef He-chadash, similarly observes the novelty of the Shibolei Ha-leket’s position, and that it does not appear to have been accepted as normative halakha.

            Rav Avraham Zev Rosner, in his work Ve-asita Ma’akeh (Bnei-Brak, 2001), cites Rav Chayim Kanievsky as commenting that even according to the view of the Shibolei Ha-leket, it would be permissible to hang laundry to dry on the ma’akeh around one’s roof.  The Gemara in Masekhet Sukka (10b) forbids hanging one’s shirt to dry on top of a sukka because observers might mistakenly think that the shirt was placed there as part of the sekhakh.  They will thus reach the erroneous conclusion that garments are suitable for use as sekhakh (while in reality they may not be used as sekhakh, since they are susceptible to tum’a).  The Gemara makes no mention of a possible prohibition due to the requirement to treat the sukka respectfully as a cheftza shel mitzva; the only concern was the potential misconception regarding the qualifications for the sekhakh.  Seemingly, then, the Gemara permitted hanging laundry on a mitzva article, and thus even the Shibolei Ha-leket would agree that one may hang laundry on the fence surrounding his roof or balcony.

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            The Torah in Parashat Ki-Teitzei (23:19) introduces the prohibition of etnan zona, which forbids bringing as a sacrifice an animal given to a prostitute in exchange for her services.

A famous passage in the Talmud (Bava Kama 70b) establishes the rule that “etnan asera Torah va-afilu ba al imo,” meaning, the etnan is unsuitable for a sacrifice even in a case where one hired the services of an immediate relative.  The reason why one might have thought otherwise has to do with the fundamental halakhic principle of kim lei be-de-rabba minei, which exempts a transgressor from payment if the act he perpetrated renders him liable for a capital punishment.  When one solicits the services of a woman who is an immediate relative, the act of incest he commits obligates him to pay the relative for her services, but also renders him liable to capital punishment.  The rule of kim lei be-de-rabba minei establishes that since through this act he becomes liable to capital punishment, he earns an exemption from the monetary obligation that takes effect through his act.  As such, should the violator nevertheless choose to pay the woman, that payment cannot, strictly speaking, be considered an etnan zona.  Since he is not legally bound to render payment, the animal he gives her technically constitutes a gift, rather than payment for a prostitute’s services.  We might have thus concluded that this animal does not become unsuitable as a sacrifice, as it is no different from any gift this woman or anybody else receives.  The Gemara therefore establishes that despite this line of reasoning, the Torah forbids an etnan zona even in this case, where the animal does not, strictly speaking, serve as payment for the woman’s services.

The obvious question arises as to why this is the case.  If, indeed, the man is not required to pay the woman for her services in such a situation, given his liability to capital punishment for committing an act of incest, then why does the animal become forbidden as a sacrifice?

Some Rishonim explain that the animal indeed has the status of payment, despite the kim lei be-de-rabba minei exemption, because this exemption is not absolute.  Kim lei be-de-rabba minei means that the court cannot force the individual to pay the sum in question, but he nevertheless bears an ethical obligation to do so, a concept referred to as la-tzet yedei Shamayim (“to fulfill his obligation toward Heaven”).  Thus, in the case of an etnan zona given to an immediate relative, the man indeed bears an obligation to pay, even though she would be unable to demand such payment in Beit Din.  Hence, the animal rendered as payment indeed constitutes an etnan zona and may therefore not be used as a sacrifice.

The Meiri, however, citing the Chakhmei Tzorfatim (“French scholars”), posits a different explanation, suggesting that the rule of kim lei be-de-rabba minei does not apply at all in such a case.  According to this theory, liability for a capital crime absolves one from a monetary payment incurred simultaneously only if that payment is imposed upon him by Torah law.  In the case under discussion, the monetary obligation is one to which the man committed of his own volition, as his chosen agreement with the woman.  His obligation to pay the woman is the result of his own decision, rather than a Torah obligation.  (Obviously, the Torah requires one to follow through on his commitments; but the commitment originates from his personal decision, rather than a Torah obligation.)  In a standard case of kim lei be-de-rabba minei, a person commits an act for which he is liable to both capital punishment as well as a Torah-imposed payment, such as one who breaks somebody else’s utensil on Shabbat.  There, the Torah itself prescribed both capital punishment, for violating Shabbat, as well as restitution payment, for damaging property, and therefore the rule of kim lei be-de-rabba minei exempts the offender from the monetary payment.  In the case of etnan zona, however, the individual imposed the payment obligation upon himself, and this obligation is therefore unaffected by the capital offense committed.

Rav Hershel Shachter, in his Eretz Ha-tzvi (p. 204), addresses these two different explanations, and notes that underlying this debate is a fundamental question concerning the obligation of sekhirut po’alim – paying workers for services rendered.  The other Rishonim, who did not accept the Meiri’s theory, perhaps felt that the obligation to pay a worker is, indeed, an obligated imposed by the Torah.  Although the precise terms of payment are negotiated between the two parties, the payment obligation is, essentially, imposed by the Torah itself, and not by the employer.  These Rishonim therefore could not embrace the Meiri’s suggestion that kim lei be-de-rabba minei would not apply to payment for a worker’s services.

Rav Shachter draws proof to the view taken by the other Rishonim from a number of cases where a person becomes obligated to pay a worker despite his never having explicitly hired him.  For example, the Gemara in Masekhet Bava Metzia (76a) discusses the case of a person who sent an agent to hire workers for a specific salary, but the only workers he could find demanded a higher amount, which was the accepted norm in that locale.  The Gemara rules that if the agent brings these workers and they complete the work, the employer must pay the sum they demand.  Even though he never agreed to these terms, he is nevertheless obligated to pay them for their services.  Clearly, then, the obligation to pay workers transcends the employer’s voluntary commitment, and is an obligation imposed by the Torah.

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            The final verses of Parashat Ki-Teitzei introduce the obligation of mechiyat Amalek, to destroy the nation of Amalek.  This mitzva also entails the obligation of zekhirat Amalek, to remember Amalek’s hostility against Benei Yisrael.

            The Sefer Ha-chinukh (423) comments that this obligation applies only to men: “All this applies to males, because it is upon them to wage war and take revenge from the enemy, not upon women.”  Since it was customary for only men to wage war, the obligation to destroy Amalek – along with the related obligation to remember Amalek’s hatred toward Benei Yisrael – does not apply to women.  The Minchat Chinukh challenges this assertion, and indeed many others maintain that women are included in this mitzva.  For this reason, it is customary for men and women alike to hear the special reading of these verses conducted each year on the Shabbat before Purim, in order to fulfill the obligation of zekhirat Amalek.

            Among the questions raised against the Chinukh’s position relates to his ruling in a different context, regarding the obligation to destroy the seven Canaanite nations.  In that context, the Chinukh (425) writes, “This mitzva applies to both males and females, in every place and at every time when we have the ability to kill them…”  Surprisingly, the Chinukh draws a distinction between the obligation to eradicate Amalek and the obligation to eradicate the Canaanite nations.  With regard to Amalek, the Chinukh asserts that since women did not customarily participate in warfare, they are exempt from the obligation.  Yet, when it comes to the Canaanite peoples, the Chinukh does not apply this rationale, and extends the obligation to include both men and women alike.

            Rav Menachem Genack, writing in the journal Beit Yitzchak (vol. 24, 5752), explains that the Chinukh approached these two mitzvot as two fundamentally different obligations.  We read in Sefer Shemot (17:16) that after Amalek’s attack against Benei Yisrael, God declared a milchama le’Hashem ba-Amalek mi-dor dor – an eternal, unrelenting war against Amalek.  At its core, then, the mitzva of mechiyat Amalek is defined in terms of a milchama, an obligation to wage war against Amalek.  When it comes to the seven Canaanite nations, by contrast, the Chinukh defined the mitzva as simply an obligation to eliminate the people.  Here, there is no requirement to wage a formal war; Benei Yisrael are simply commanded to see to it that the people are eliminated, not necessarily through the means of organized warfare.

            This explains why the Chinukh distinguished between these two mitzvot with respect to the involvement of women.  Regarding the Canaanite nations, men and women alike bear a personal obligation to take part in the effort to eliminate these people. With regard to Amalek, however, the nation as a whole bears a collective obligation to wage battle against the enemy nation.  Since this obligation is defined specifically in terms of formal warfare, it applies only to those who traditionally participated in battle.

            Rav Genack adds that this distinction might also resolve a difficulty that many have noted concerning the Chinukh’s discussion of the mitzva to destroy the Canaanite peoples.  The Chinukh writes that this obligation applies only in situations where one would not endanger himself by attempting to eliminate a member of these nations.  Already the Minchat Chinukh noted that any obligation to wage war must, by definition, entail a risk to life.  It seems clear that the standard rule of piku’ach nefesh, which suspends Torah law for the sake of preserving human life, does not apply to mitzvot that require waging war.  Why, then, did the Chinukh apply the rule of piku’ach nefesh even to the obligation to destroy the seven nations?

            Rav Genack answers that the rule of piku’ach nefesh is suspended specifically with regard to mitzvot that require waging formal warfare.  As mentioned, since war necessarily poses a risk to life, the piku’ach nefesh provision cannot possibly apply.  When it comes to the seven Canaanite nations, however, as we saw, the Chinukh does not define this obligation in terms of formal warfare, but rather as a direct obligation to eliminate the members of these nations.  As such, the standard rule of piku’ach nefesh remains in force, and thus one would not be required to eliminate a member of these nations if this would endanger his or somebody else’s life.

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            The Torah in Parashat Ki-Teitzei introduces the prohibition of machazir gerushato, which forbids remarrying a woman whom one had married and divorced if she had married somebody else in the interim.  In describing this situation, the Torah writes, “…she leaves his home and goes and becomes [married] to another man” (24:2).

            The Gemara, in Masekhet Kiddushin (5a) and elsewhere, infers from this verse a degree of legal parity between the process of kiddushin (betrothal) and that of geirushin (divorce).  The juxtaposition in this verse between the words ve-yatze’a (“she leaves”) and ve-hayeta (“she becomes married”) alludes to the fact that the legal requirements of kiddushin and geirushin share certain properties.  This allusion thus forms the basis of the concept of kiddushei shetar, which allows a man to betroth a woman by handing her a document declaring the betrothal.  Just as a divorce is effectuated by handing the woman a document (the get) declaring that she is divorced (as the Torah establishes here, in 24:1), so can betrothal be achieved by handing the woman a document declaring that she is betrothed.  (Nowadays, of course, kiddushin is performed by handing the bride an object of value, rather than a document.)

            We find a debate among the Rishonim as to how far this equation is extended.  The Ba’al Ha-itur, as cited by the Ran and Rashba (to Kiddushin 2), held that one cannot perform kiddushin by legally transferring to a woman a piece of land.  According to the Ba’al Ha-ittur, just as one cannot divorce his wife with a get written on something attached to the ground, similarly, kiddushin can be performed only with moveable articles.  Although one of the methods of betrothal is giving the woman money or another object of value (kiddushei kesef), the Ba’al Ha-itur claimed that this object must be moveable, as opposed to real estate, given the equation that the Gemara establishes between the processes of kiddushin and geirushin.  (It should be noted that Rav Baruch Simon, in the journal Beit Yitzchak, vol. 29, cites a work where an entirely different reading of the Ba’al Ha-itur is suggested.)

            The Ran and the Rashba, however, both dispute this position of the Ba’al Ha-ittur.  They claim that the comparison drawn between kiddushin and geirushin does not extend beyond the narrow context of shetar – meaning, betrothing or divorcing a woman by handing her a document.  The other methods of kiddushin – betrothing by giving an object of value, or through intimate relations – are clearly not shared with geirushin, and we therefore have no reason to assume that these methods must in any way accommodate the rules that govern geirushin.  Hence, in their view, one may betroth a woman by transferring to her a piece of real property.  This also appears to be the position of Tosefot in Masekhet Kiddushin 5a (though Rav Shemuel Eliezerov, in his Dvar Shemuel, suggests that Tosefot did not necessarily hold this view).

            This question also affects the more general issue of whether the process of kiddushei kesef requires that the groom directly hand the money or object of value to the bride.  The Avnei Milu’im (30:1) cites the Maharil as requiring a direct, physical transfer, based upon the equation between kiddushin and geirushin.  Just as a husband must directly hand the get to the woman to effect the divorce, the Maharil rules, so must the groom directly hand the object to the bride for the kiddushin to be valid.  The Avnei Milu’im, however, disagrees, noting the aforementioned position of the Ran and Rashba, who held that the equation drawn between geirushin and kiddushin applies only to the realm of kiddushei shetar.  According to the Avnei Milu’im, then, one who betroths a woman with a document must indeed directly hand the document to the woman, while one who performs kiddushin with money or another object of value can simply place it on the ground and announce that he seeks to betroth the woman with this object.

            Yet another application of this question concerns the view of the Or Zarua that geirushin cannot be performed during the nighttime hours.  According to this position, Halakha treats the process of geirushin as part of the judicial framework, and it therefore cannot be performed at night, just as Beit Din does not convene at night.  The Sha’ar Ha-melekh (beginning of Hilkhot Geirushin) cites the view of the Yerei’im that raises the possibility of extending the Or Zarua’s provision to kiddushin.  In light of the equation between betrothal and divorce, the Yerei’im suggested, we might assume that once the Or Zarua disqualified nighttime geirushin, he would perhaps disqualify nighttime kiddushin, as well.  Of course, according to the Ran and the Rashba, the Or Zarua’s ruling concerning geirushin could, at most, affect kiddushei shetar – situations where one seeks to betroth a woman through the transfer of a document – and would have no impact upon cases of kiddushei kesef.

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            The Torah in Parashat Ki-Teitzei prescribes capital punishment for a person who kidnaps and enslaves a fellow member of Benei Yisrael: “If a man is found stealing a person among his brethren, among the Israelites, and subjugated him and sold him, that thief shall die…” (24:7).  Immediately thereafter, the Torah issues a warning to follow the required procedures in situations of tzara’at, and to remember the incident of Miriam who was stricken with tzara’at as a result of the derogatory comments she made about her brother (24:8-9).

            Rav Shimshon Refael Hirsch offers the following explanation for the juxtaposition between these two topics – selling a fellow Jew into slavery, and the sin of lashon ha-ra (negative speech about one’s fellow):

The murderous attack of one man against another, as well as such an attack on the personal freedom and human rights as described in the previous verse, are committed to the charge of the human law-court.  But remember and by careful attention keep your mind fully awake to the fact that the whole social intercourse between man and man, even words and thoughts are under the watchful Eye and Judgment of a Higher Court, Who places His “Finger” admonishingly and warningly on the house, garment, the body of anybody who, in his intercourse with his brethren forgets brotherly love and consideration.

In other words, after the Torah charges the courts with the responsibility to apprehend and punish capital offenders, it then issues a warning concerning those areas of social interaction that cannot be placed under the jurisdiction of the human court.  In our dealings with our fellow members of Benei Yisrael, we must remember that we are accountable to the Almighty even regarding matters in which the human courts are unable to intervene.

            We might add a more specific point of connection between enslaving one’s fellow and speaking lashon ha-ra.  Both offenses involve denying the sanctity and intrinsic worth of another person, and viewing that person as but an instrument for advancing one’s own needs and interests.  One who speaks lashon ha-ra chooses to overlook the other person’s admirable qualities, and to instead focus on that individual’s faults and failings in order to fortify his own fragile ego.  Rather than viewing his fellow as a person worthy of respect and admiration, the speaker of lashon ha-ra reduces the other to a topic of conversation, a source of amusement, and a curiosity with which to soothe his own insecurities.  Thus, this offense might indeed be seen as a kind of “enslavement,” denying one’s fellow the dignity and respect he deserves, and using him for one’s own interests.