The Israel Koschitzky Virtual Beit Midrash

Surf A Little Torah
Yeshivat Har Etzion

by Rav David Silverberg

As we briefly mentioned yesterday, Parashat Ki-Teitzei mentions the obligation for soldiers to keep a shovel with them in the military camp: "You shall have a shovel with your gear, so that when you have squatted you shall dig a hole with it and cover up your excrement" (23:14). The following verse presents the reason for this obligation: "Since the Lord your God moves about in your camp to protect you and to deliver your enemies to you, let your camp be holy." The Torah informs us that when Benei Yisrael wage war, God accompanies them to offer His assistance. Consequently, the environment in the camp must meet the standards befitting God's presence, and the Torah therefore requires that bodily waste be disposed of properly.

The Gemara in Masekhet Ketubot (5b) offers a homiletic interpretation of this mitzva. By reading the word "azeinekha" ("your gear") as "oznekha," or "your ear," and by invoking the additional meaning of "yated" ("shovel") as "peg," the Gemara rewords the verse to read as follows: "You shall have a peg by your ear." As the Gemara explains, this means that if one hears improper speech, he should plug his ears, so-to-speak, and refuse to allow the inappropriate words to enter.

The question arises as to the relationship between the homiletic reading of the verse and its context – the sacred quality of the military camp. Did Chazal extract this verse entirely from its context in arriving at this homiletic interpretation, or did they detect some connection between the context of warfare and refusing to listen to improper speech?

The work "Orach Yesharim" is cited as explaining this connection based on a famous Midrashic passage in Vayikra Rabba, towards the beginning of Parashat Emor. The Midrash asks why it was that under the reign of King David, when Torah observance was generally widespread, Benei Yisrael suffered many casualties at war, whereas later, under the wicked King Achav, when the Northern Kingdom became a pagan country, they would win wars with few fatalities. The Midrash explains that in David's time, Benei Yisrael were plagued by "daltorin" – talebearers and gossips. People fought with one another and tried to defame their competitors' reputations. In Achav's time, however, as corrupt and spiritually vacuous society had become, people respected one another and would not speak badly about their fellows. It was this quality that guaranteed Achav's forces victory and saved them from casualties, despite the widespread paganism and outright rejection of the Torah. When Benei Yisrael work together with mutual respect, they are rewarded with military success and protection.

Understandably, then, Chazal detected within these verses, which speak of the proper decorum in the military camp, an allusion to the issue of lashon ha-ra – gossip and slander. Just as the camp's physical environment must be kept clean of filth out of respect for the Shekhina, so must the social atmosphere reflect the awareness of God's presence. A famous Gemara in Masekhet Sota (17a) writes that when a husband and wife are meritorious, the Shekhina resides among them; if not, then they are consumed by fire. God's presence can reside in a home only if the atmosphere is one of peace, harmony, and mutual respect and sensitivity. If a family is plagued by strife, contention, and selfishness, then it cannot serve as a home for the Shekhina. The same applies to a military setting. Only if the soldiers close their ears to slander and gossip, only if they respect each other's feelings and privacy, will the Shekhina maintain its presence among them and guarantee their triumph.

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Parashat Ki-Teitzei contains the famous mitzva of "shilu'ach ha-kan," the obligation to send away a mother bird before taking her eggs from underneath her (22:6-7). What is the underlying theme of this obligation? What message does the mitzva of "shilu'ach ha-kan" convey?

The Rambam, in his Moreh Nevukhim (3:48, cited by the Ramban in his commentary to these verses), takes the most obvious approach, that this mitzva is intended to engender within us compassion and sensitivity. Since a mother bird will experience terrible sorrow upon seeing the loss of her young, the Torah instructed us to show sensitivity and send her away so that she does not witness the young chick's removal from the nest. The Rambam notes that his view appears to be contradicted by the mishna in Masekhet Berakhot (33b), which writes explicitly that one should not view this mitzva as an expression of divine compassion and sensitivity. The Rambam, however, claims that this mishna follows the view espoused by some rabbis of the Talmud that we mustn't make any attempt to identify the reasons underlying the mitzvot. We are to perceive the commandments as nothing more or less than divine decrees; the reasons behind them should be of no interest to us whatsoever. But we, the Rambam claims, follow the opposing view, which permits and in fact encourages probing the mitzvot to uncover their underlying reasons.

The Sefer Ha-chinukh (537) suggests a different explanation for this mitzva. He claims that by sending away the mother bird, rather than seizing it together with its young, we remind ourselves of God's providence over the animal kingdom, how He ensures to save all species from extinction. Just as a person may not take an entire nest of birds, so will the Almighty never let an entire family of creatures be destroyed. This reminder will then reinforce our belief in God's providence and protection over us if we obey His mitzvot. (The Sefer Ha-chinukh follows this same approach in explaining the prohibition of "oto ve-et beno" – Vayikra 22:28.)

An entirely different approach is taken by Rav Shimshon Refael Hirsch, in his commentary to these verses. He claims that refraining from taking the mother bird expresses one's appreciation and respect for motherhood. We are to reward the mother bird, so-to-speak, for her caring devotion to her young by setting her free.

In this vein, Rav Hirsch explains the numerous associations we find between this mitzva and family life. For one thing, the Torah here promises long life as reward for observance of this mitzva. One who shows his appreciation for the process of nurturing and raising offspring, the building and development of life, is blessed with continued life. Significantly, the only other mitzva which the Torah rewards with long life is honoring parents (Shemot 20:12; Devarim 5:16) – another mitzva intended to express one's appreciation of parenthood. Furthermore, immediately after this mitzva of "shilu'ach ha-kan" the Torah mentions the obligation of "ma'akeh" – to build a fence around the flat roof of a new house. Rashi, based on the Midrash Tanchuma, comments that one is rewarded for his observance of "shilu'ach ha-kan" by having the ability to build a new house. One who expresses his commitment to the value of family life and parenting is blessed with a new home in which to apply and implement these ideals.

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Towards the beginning of Parashat Ki-Teitzei, the Torah presents the law of the "ben sorer u-moreh," the wayward son, whom the parents bring before the local Beit-Din for execution (21:18-21). The Gemara in Masekhet Sanhedrin (71a) reports that (at least according to one view) there has never been an actual case of a ben sorer u-moreh. So many specific conditions must be met for the law to be implemented, that the likelihood of such a situation arising is virtually non-existent. Why, then, did the Torah bother presenting such a case if it can never occur? The Gemara raises this question and replies, "Derosh ve-kabeil sekhar" – the material is presented for us to study and thereby earn reward. But as many commentators note, clearly there must be some general lesson latent within the institution of ben sorer u-moreh that we are to study. Clearly thTorah would not have created a purely theoretical halakha only to add more study material to the corpus of Jewish law. So what is the critical lesson of the ben sorer u-more on account of which the Torah mentions it, despite the impossibility of its practical application?

Rabbenu Bechayei writes that the theoretical halakha of ben sorer u-moreh demonstrates the extent to which the love of, and commitment to, God must extend. The halakha of ben sorer u-moreh requires parents to bring their own son to the court for execution – such that their devotion to God supersedes even their love for their own child.

It turns out that according to Rabbenu Bechayei, the halakha of ben sorer u-moreh resembles the story of akeidat Yitzchak. God does not wish for people to sacrifice their children, but our devotion to Him must reach the point where we would be prepared to take even this drastic measure in fulfillment of the divine will.

The Keli Yakar suggests a different approach, claiming that this halakha reflects the nature of God's paternal relationship with His people. The familiar image of God as our loving Father may give the erroneous impression that He will constantly forgive and overlook our mistakes, regardless of their gravity. The halakah of ben sorer u-moreh teaches that even parental love has its limits, and so as loving a Father the Almighty is, at times it becomes necessary for Him to punish us harshly for our wrongdoing.

Rav Shimshon Refael Hirsch explains that the halakha of the ben sorer u-moreh provides numerous points of instruction regarding the art of parenting. Rav Hirsch claims that the conditions imposed on the implementation of this halakha are meant to establish the absence of any factors related to upbringing to which we can attribute the child's delinquency. For example, halakha requires that both parents come before the court and claim that the child does not listen to them. Meaning, the child is executed only if both parents made an effort to correct his behavior. According to Rav Hirsch, this shows that differing educational attitudes between parents can often result in a child's confusion and misdirection. If only one parent approaches the educational process of child-rearing seriously, then the child is likely to interpret the silent parent's passivity as an expression of apathy – which can easily lead to a rejection of his parents' values. The court does not execute the child unless it is clear that this disparity between father and mother did not contribute to his misconduct, and that we can blame only his intrinsic nature for his wayward tendencies. This also explains another seemingly peculiar condition – that the two parents must physically resemble one another. Rav Hirsch suggests that here, too, the Torah points to the need for a consistent educational message transmitted from both parents equally – a consistency symbolically represented in the halakha by the requirement of physical resemblance.

Furthermore, as Rav Hirsch notes, the Torah describes the ben sorer u-moreh as a child who not only disobeys his parents, but who also gluttonously indulges in meat and wine (see 21:20). Why does this quality in particular contribute to the child's attainment of the status of "ben sorer u-moreh"? Rav Hirsch explains that the Torah here warns parents against disproportionate emphasis in the home on food and drink. Parents must concern themselves with much more than the quality and quantity of the food their children eat; they must pay far more attention to the values to which children are exposed and the ideals by which they learn to live their lives. The Torah's illustration of the wayward son shows that extensive preoccupation with food steers one away from spirituality and values, and contributes to the degenerative process which culminates in the emergence of a ben sorer u-moreh.

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Yesterday we discussed the halakha of the "ben sorer u-moreh," the wayward son, which the Torah introduces towards the beginning of Parashat Ki-Teitzei (21:18-21). The Torah calls upon the parents to bring their son to the local rabbinical court which then executes the delinquent. As we saw yesterday, the Gemara (71a) observes that such a case never actually occurred; the conditions that must be met for this halakha to be implemented make it virtually impossible for it to ever happen. Nevertheless, the Gemara explains, the Torah presents such a scenario because "derosh ve-kabeil sekhar" – we receive reward for studying and analyzing the halakhot. Today we will present a different approach to understanding the fundamental message underlying this halakha, based on the analysis of Rav Yaakov Moshe Lessin, in his "Derekh Chayim."

The Gemara (Sanhedrin 72a), cited by Rashi (to verse 18), comments that the wayward son is killed "because of his future." Meaning, the Torah foresees that a youngster with the "credentials" to qualify as a halakhically-defined "ben sorer u-moreh" will ultimately become a criminal and prove harmful to society. It therefore prevented this outcome by calling for the youngster's execution.

As mentioned, such a case never really happened. Nobody has ever reached such a point during his youth that he was beyond correction, that there remained no hope at all for his ever becoming a productive member of society. However, the institution of ben sorer u-moreh serves as an extreme model of a less extreme, common phenomenon – one which in fact applies to each and every one of us. For one thing, this halakha shows the damage caused by sin, the process of moral degeneration it can trigger. If the Torah determines that a child who commits certain crimes will reach the point beyond return, then sinful conduct must have the capacity to push the violator further and further away from the proper path. Although practically, it never occurred that a youngster reached the point where we despair from his future, the basic theory remains: each act of wrongdoing makes it more difficult for a person to correct himself. Additionally, in light of this basic fact, Providence will, at times, intervene in an individual's life to either alert him of his process of deterioration or prevent him from wrongdoing. Generally unbeknownst to us, many painful experiences in our lives help mold our character and help us grow. In the extreme model of the "ben sorer u-moreh," the Torah ends the boy's life before he has a chance to deteriorate. In the less extreme, more common instances, God somehow brings us into certain situations to help us address our faults, build our character, and grow.

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Among the many laws introduced in Parashat Ki-Teitzei are the laws of divorce. The Torah writes, "If a man takes a woman and comes to her, and she fails to please him… he writes her a bill of divorce… " (24:1). From this verse Chazal extract many laws relevant to the process of divorce. In addition, from the verse's first clause – "If a man takes a woman and comes to her" – Chazal deduce the laws of marriage. Towards the beginning of Masekhet Kiddushin, the Gemara, on the basis of this and the next verse, establishes the three methods of "kiddushin" - formally betrothing a woman. From the word, "yikach" (literally, "take"), the Gemara extracts the notion of kiddushei kesef – the familiar method of kiddushin, by which the groom betroths the bride with money or some object of value. As the Gemara notes, the term "kicha" ("taking") often refers to monetary acquisition, and thus in this context the Torah alludes to betrothal through money. The second method, "kiddushei shetar," or betrothal through the transfer of a marriage document, is deduced from the next verse: "She [the divorcee] leaves his household and becomes the wife of another man." The juxtaposition in this verse between "leaving his household" and "becomes the wife" points to an association between these two processes, of divorce and marriage. Just as divorce is effected through the transfer of a document from the husband to wife, so can kiddushin be performed through the groom's transmittal of a shetar kiddushin, or betrothal document, to the bride. Finally, from the phrase, "If a man takes a woman and comes to her" (referring to sexual relations), the Gemara concludes that kiddushin can be effected by the husband and wife engaging in sexual relations for the purpose of kiddushin. The Gemara notes, however, that the practice developed to forbid this method of kiddushin. Later, it became accepted to always perform kiddushin through "kiddushei kesef," traditionally by transferring a ring to the bride.

The Talmud Yerushalmi, towards the beginning of Masekhet Kiddushin, considers a very surprising theory concerning the laws of kiddushin. It suggests that perhaps to betroth a woman, a groom must perform all three of these methods – he must transfer money or an object of value, give her a document, and perform the sexual act. The Yerushalmi ultimately dismisses this hypothesis, but the fact that such a possibility was raised must call to our attention. Why would the Talmud Yerushalmi have even considered requiring all three types of kiddushin?

Many Acharonim (see, for example, Rav Yisrael Gusman's "Kuntresei Shiurim," beginning of Masekhet Kiddushin) have explained that the three methods of kiddushin reflect its three distinct aspects or effects. Kiddushei kesef relates to the financial aspects of kiddushin. On one level, betrothal constitutes a mutual, financial agreement between the bride and groom, each committing him/herself to various financial obligations towards the other. For example, the husband obligates himself to provide his wife with food and clothing, while she, in return, surrenders to the husband all her earnings during the marriage. A husband is named his wife's inheritor, and in return he must pay for a proper funeral upon her death. And so on. The transfer of money or an object of value represents the mutual financial obligations that take effect at the moment of betrothal. Kiddushei shetar, which resembles and is derived from the process of divorce, may thus be seen as the inverse equivalent of the transfer of the get (divorce contract). If the get is intended primarily to permit the wife to remarry, then kiddushei shetar renders the woman forbidden to all men other than the groom. Finally, kiddushei bi'a performs the opposite function – it sanctions intimate relations between the husband and wife.

This might explain why the Yerushalmi considered requiring all three to effect kiddushin. Kiddushin must accomplish all three goals – put all financial obligations into effect, create the prohibition against the wife's relations with other men, and permit relations between the husband and wife. Therefore, we might have expected halakha to require all three forms of kiddushin. In conclusion, however, each of the three methods of kiddushin, however focused it might be on its unique feature, indeed yields all the desired results. Therefore, any one of these methods suffices to create the status of kiddushin.

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Yesterday we discussed the three methods of kiddushin, betrothal in Jewish law, which Chazal extract from two verses in Parashat Ki-Teitzei (24:1-2). As we noted, it is possible, according to Torah law, for a man to betroth a woman by engaging in sexual relations with her – a method of betrothal called "kiddushei bi'a." This method of kiddushin, which Chazal ultimately outlawed, differs drastically from the other two – kiddushei kesef (the transfer of money or an object of value, such as a ring) and kiddushei shetar (handing to the bride a marriage document). These two procedures are familiar to us from a different realm of halakha as ways to effect a status change. As the mishnayot in Masekhet Kiddushin describe, real property can change ownership in one of three ways: kesef – the transfer of money, shetar – handing over a deed of sale, and chazaka – a demonstrative act of ownership, such as constructing a fence and the like. Kiddushei kesef and kiddushei shetar clearly parallel the first two methods of kinyan (acquisition) listed in the mishna. A woman's change of status from single to married, with all the halakhic ramifications thereof, is effected in a manner corresponding to the legal acquisition of land. The reason why this is so probably relates to the Rambam's description in the beginning of Hilkhot Ishut of the difference between marriage before Matan Torah and after. Before the Torah instituted kiddushin, a man would meet a woman, they would decide to marry, and he would then take her home and sleep with her. The Torah introduced a required interim period between the couple's consent to marriage ("shiddukhin") and the actual marriage ("nisu'in"), which we know as kiddushin (or "eirusin"). Kiddushin is meant to lend a more meaningful and sacred quality to the relationship by adding a formal dimension that slows the process and makes it less spontaneous and instinctive. Halakha therefore borrowed from the model of kinyanim, the realm of commerce, to add a more formal dimension to the otherwise reckless, haphazard spontaneity which characterized pre-Matan Torah marriages.

Betrothal through sexual relations, of course, has nothing to do with the commercial realm. At first glance, then, we might conclude that kiddushei bi'a represents an entirely different track of kiddushin, fundamentally distinct from kiddushei kesef and kiddushei shetar.

One may, however, argue otherwise, that kiddushei bi'a, too, originates from the realm of kinyanim. Recall that the third method of effecting legal transfer of property is chazaka – a demonstrative act of ownership by the buyer. What is the rationale underlying this form of kinyan? Quite simply, the buyer establishes his ownership over the acquired property by acting like its owner. Just as a tangible object can be formally acquired through "hagbaha" – lifting it in the air, which symbolizes the buyer's ownership, so does land formally change hands when the buyer uses the field in a way that expresses ownership. The same general theory may apply to kiddushei bi'a. The change of status is effected by acting in a manner that reflects the new status. The relationship of marriage is represented, on one level, by the opportunity for intimate contact between the husband and wife, and so this status can be established by performing such an act.

We are thus left with two possible approaches to kiddushei bi'a: either it, like the two other methods of kiddushin, is meant to parallel the acquisition of property, or it differs fundamentally from the other two and constitutes a unique track of kiddushin.

Several sources in the Talmud suggest, if not prove, that indeed kiddushei bi'a is of an entirely different nature from the other two forms of kiddushin. First, in Masekhet Kiddushin (10a), the Gemara inquires as to the extent of the effect of kiddushei bi'a. The Gemara asks whether this form of kiddushin yields the status of kiddushin, such that the couple is now betrothed and must perform the final stage of "nisu'in," or if it consummates the marriage completely, and the bride and groom are fully married. Obviously, the other two forms of kiddushin effect just that – kiddushin, and no more. That the Gemara considered the possibility of allowing kiddushei bi'a to complete the entire marriage process strongly suggests that it is of an entirely different nature. Unlike the other two methods, which are intended as an interim process before the consummation of the marriage, kiddushei bi'a provides the proper framework within which the bride and groom can halakhically begin their marriage without the initial stage of betrothal.

Likewise, the Gemara in Masekhet Ketubot (74a) distinguishes between kiddushei bi'a and the other forms of kiddushin in terms of the possibility for "shelichut" (appointing an agent) and "tenai" (imposing a condition). First, whereas one can perform kiddushei kesef and kiddushei shetar through an agent who transfers the money, object or document on the groom's behalf (and a bride can appoint an agent to receive on her behalf), kiddushei bi'a must be performed personally. On one level, the reason is self-evident, as nothing could be less appropriate then kiddusbi'a performed by anyone other than the bride and groom themselves. But additionally, it also reflects the non-legal quality of kiddushei bi'a. All legal transactions and the like allow for the appointment of an agent; kiddushei bi'a, however, works differently, and does not follow the rules of legal acquisition. Similarly, one cannot betroth a woman through kiddushei bi'a "with strings attached." Normally, halakha allows one to perform kiddushin with a condition – for example, on condition that his parents consent, or on condition that he earns a given sum of money within the next two weeks. This is true of all legal acquisitions. Kiddushei bi'a, however, cannot be performed on any condition. This, too, might reflect the fundamental difference between kiddushei bi'a and the other two methods of kiddushin.

(Based on a VBM shiur written several years ago by Rav Moshe Taragin, available in the VBM course archives)

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Parashat Ki-Teitzei includes the mitzva known as "hashavat aveida" – to return a lost item that one finds to its rightful owner (22:1-3). In an attempt to justify this mitzva's appearance in the earlier part of Parashat Ki-Teitzei, which opens with a discussion of warfare, Ibn Ezra arrives at a fascinating perspective on this mitzva. He claims that on the level of "peshat," the straightforward reading of the verses, the Torah in these verses refers specifically to a situation of war. Even when Benei Yisrael are at battle, they are required to return lost items to their owners. The general mitzva of hashavat aveida, Ibn Ezra claims, is derived from here through "derash," the secondary, homiletic level of interpretation.

It turns out, then, according to Ibn Ezra, that we have here an example of a common phenomenon in Chumash, where the Torah introduces a mitzva specifically as it applies in a context where it otherwise runs the risk of neglect. For example, later in Parashat Ki-Teitzei, the Torah mentions the prohibition against exceeding the prescribed number of lashes to be administered to a violator (25:3), from which Chazal derive the general prohibition against hitting one's fellow (Rashi, based on Sanhedrin 85a). It is specifically regarding a Torah violator who deserves lashes anyway, in which case the court-appointee may likely decide on his own to exceed the prescribed number, that the Torah issues its prohibition against smiting another person.

Similarly, here, according to Ibn Ezra, the Torah chooses a military setting as the context in which to introduce the obligation of hashavat aveida. A military camp during war is a tumultuous, tense and unstable setting. People are generally anxious, physically weary, and preoccupied with the pressures of warfare. This is a context in which people are prone to ignore the basic needs of others and lose sensitivity to their property. But the Torah demands the highest standards of sensitivity under all circumstances, even during the most stressful and pressure-ridden situations. In his discussion of this comment of Ibn Ezra, Rav Henoch Leibowitz zt"l is cited as drawing an analogy to an exhausted mother who, after a full day of tending to her household, finally puts all her children to bed and falls into a deep sleep. Just as it seems as though no noise in the world can wake her, the baby's cry from the room down the hall awakens her immediately. Similarly, Rav Leibowitz remarked, the needs of our brethren must grab our attention – to whatever extent possible – even during times of stress and pressure.

Rav Leibowitz then brought a powerful and poignant anecdote to further develop this theme. One year on Yom Kippur, Rav Yisrael Salanter passed by a man deeply engrossed in his Yom Kippur thoughts – reflecting on matters of teshuva and introspection. Rav Yisrael asked the gentleman to tell him the time, but the man either did not hear or did not want to hear; he proceeded with his contemplation and did not react to Reb Yisrael's question. It is told that it was due (at least partially) to this incident that Reb Yisrael decided to promote the study of mussar (characer development and ethical conduct). We must constantly remind ourselves that even when we find ourselves under pressure – and even if this pressure involves the sacred concerns of teshuva and spiritual growth – we cannot overlook our basic, elementary responsibility to look out for the needs of others.

This shiur is provided courtesy of the Virtual Beit Midrash, the premier source of online courses on Torah and Judaism - 14 different courses on all levels, for all backgrounds.

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