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Yeshivat Har Etzion

PARASHAT BEHAR-BECHUKOTAI

By Rav David Silverberg

            In Parashat Behar (25:14) the Torah introduces the prohibition known as ona'at mamon, which forbids underpaying or overcharging in a commercial transaction.  The concept of ona'at mamon includes two halakhot: a Torah prohibition, and a provision retroactively canceling the transaction when this prohibition has been violated.  If a retailer, for example, charges for an item more than shetut – one-sixth its reasonable value – the transaction is null and void.

            We find in the Ramban's commentary to this parasha a famous discussion concerning the scope of the ona'a prohibition.  A general halakhic principle, mentioned numerous times in the Talmud, says that ein ona'a be-karka'ot – ona'a does not apply to real estate.  Transportable items are subject to the laws of ona'at mamon, whereas real property remains outside the framework of these laws.  The Ramban, however, notes that the Torah introduces and addresses the laws of ona'at mamon specifically in the context of land transactions, clarifying how these laws are impacted by the institution of yovel, which requires the return of all lands to their original owners on the jubilee year.  The Ramban resolves this anomaly by boldly asserting that the prohibition of ona'a indeed applies to all transactions, including real estate sales.  The Gemara's distinction between real and moveable property pertains only to the second issue – the retroactive annulment of the sale.  Where a buyer underpaid or a seller overcharged for a moveable item, the acquisition is void; if, however, this occurs in the context of a land transaction, the transaction is legally binding despite the violation that has taken place.  The Ramban explains that a person will generally not regret the purchase or sale of real estate even if he discovers that he overpaid or undercharged.  Since even the buyer or seller himself would generally not wish to revoke the sale after the fact, the Torah does not annul the transaction in such a case.  (Of course, if a buyer was unaware of a significant deficiency in the property, then the transaction constitutes a mekach ta'ut, a transaction made on erroneous presumptions, and is void.  We deal here with cases where the buyer or seller was unaware that the price paid was significantly higher or lower than the market price.)

The Minchat Chinukh (337) raises the question of why, according to the Ramban, one is one not liable to malkot (flogging at the hands of the court) for violating ona'a in a real estate transaction.  The Rambam (Hilkhot Mekhira 12:1) writes that ona'a does not render one liable to corporal punishment because of the principle of lav ha-nitan le-tashlumin; meaning, any violation which results in an obligatory monetary payment does not render one liable to malkot.  Thus, for example, Bet Din does not administer corporal punishment to a thief, because he is already punished in the sense that he must pay the victim for what he stole.  Similarly, since a violator of ona'a must return either the merchandise or the money, he is not punished by the court.  The Minchat Chinukh notes that according to the Ramban, this reason is valid only when dealing with the sale of moveable merchandise, where the Torah cancels the transaction if ona'a has been violated.  But in cases of land transactions, even if the buyer or seller transgresses the prohibition of ona'a, he does not have to return the property or the money.  Seemingly, then, he should be liable to malkot – a conclusion that appears nowhere in halakhic literature.

Today we will present the Minchat Chinukh's answer to this question.

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            Yesterday, we began discussing the Ramban's famous theory concerning the prohibition of ona'at mamon (overcharging or underpaying for commercial merchandise), which he presents in his commentary to Parashat Behar (25:14).  According to the Ramban, the ona'a prohibition applies to sales of all kinds of merchandise, but only in cases of moveable items – as opposed to real estate – is the transaction revoked when ona'a has been violated.  We concluded our discussion with the question raised by the Minchat Chinukh, who noted that when one violates ona'a in a sale of real property, he should be liable to malkot, since no obligation of monetary payment results from his transgression.  (See yesterday's discussion for further clarification.)  Generally speaking, a violator of ona'at mamon is not punished with malkot because a lav ha-nitan le-tashlumin – a transgression resulting in a monetary payment obligation – does not warrant malkot.  In the case of land sales, however, a violator should, indeed, be liable to malkot, something that appears nowhere in the Talmud or later halakhic works.

            The Minchat Chinukh suggests an answer based on the Ramban's explanation for why the transaction is not revoked in cases of ona'a involving real estate.  As we saw yesterday, the Ramban asserted that a person does not normally regret a real estate transaction, even if he later discovers that he overpaid or undercharged.  Since the buyer or seller himself would not, after the fact, wish for the sale to be revoked, the Torah does not revoke a sale in such a case.  In presenting this explanation the Ramban employs the term mechila (literally, "forgiveness"), indicating that the victim in the case of land sales implicitly foregoes on the amount he lost as a result of the other party's deceit.  According to the Minchat Chinukh's understanding of the Ramban, the sale remains valid because the victim most likely foregoes on the sum technically owed to him due to his overpaying or undercharging for the property.

            If so, the Minchat Chinukh explains, we can readily understand why no malkot are administered even in cases of real estate sales.  We find elsewhere in Halakha that when a violation results in an obligatory payment, the violator escapes malkot even if in the end he does not pay the victim.  Said otherwise, the concept of lav ha-nitan le-tashlumin applies even if the perpetrator never ends up paying the given sum; even in such a case, no malkot are administered.  For example, if a master beats his servant (an eved kena'ani) causing him physical injury, he does not pay for damages because in any event all money received by a servant de facto becomes the master's property.  Nevertheless, the master is not liable to malkot for injuring another Jew, since in theory the violation he transgressed yields an obligatory payment (Shulchan Arukh, C.M. 424:3).  Similarly, the Minchat Chinukh argues, in the case of an ona'a violation with regard to a land transaction, the transgression does, in principle, result in an obligation to compensate the victim.  It is only due to the victim's implicit mechila that the sale is not revoked, and therefore this case, too, qualifies as a situation of lav ha-nitan le-tashlumin.  For this reason, malkot is not warranted.

            Rav Avraham Yitzchak Sorotzkin, in his Rinat Yitzchak, disagrees with the Minchat Chinukh's reading of the Ramban.  He demonstrates that the Ramban's point was something entirely different, namely, that given the victim's ex post facto acceptance of the transaction, Halakha looks upon the money or property he rendered as the legal exchange for that which was received.  In the case of an overpaying buyer, for example, since after the fact he accepts the transaction's final result, the excessive sum that he paid constitutes a reasonable equivalent to the acquired property.  The transaction remains valid not because the buyer foregoes on the excess sum that he rightfully deserves, but rather because ultimately there is no excess sum, given that, after the fact, the amount paid for the land is deemed a legitimate price.  Whereas the Minchat Chinukh understood that the transaction is essentially revoked, only we presume the victim waives his right to the revocation, Rav Sorotzkin understood that the transaction is never revoked, but rather deemed legitimate by virtue of the buyer's ultimate satisfaction with the outcome.

            According to this reading of the Ramban, there is not even a theoretical payment obligation upon the violator in cases of ona'a involving land, and so the question resurfaces: since he bears no obligation of payment, why he is not liable to malkot?

            Tomorrow we will iy"H present other answers to this question.

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            We have been discussing this week a question raised by the Minchat Chinukh (337) concerning a famous theory advanced by the Ramban in his commentary to Parashat Behar (25:14).  The Gemara distinguishes between real estate and moveable property with respect to the prohibition of ona'a (underpaying or overcharging for merchandise), establishing that ona'a retroactively annuls a sale only in cases of moveable property.  In a sale of land, the transaction remains valid even if the amount paid was far higher or lower than the appropriate price.  The Ramban claimed that this distinction applies only to the sale's revocation; the ona'a prohibition, however, is transgressed even in cases involving real property.  The Minchat Chinukh observed that according to the Ramban, it seems that a violator of ona'a in a case of a land sale should be liable to malkot.  Generally, ona'a does not render one liable to malkot because it is a lav ha-nitan le-tashlumin – it incurs a monetary payment.  In the case of land, however, no payment is involved, and thus malkot should be warranted, something that the Talmud and Rishonim never mentioned.  (See our previous two discussions for further elaboration.)

            Rav Baruch Yitzchak Yissachar Leventhal, in his work Birkat Yitzchak (Jerusalem, 5706), suggests two approaches to resolve this difficulty.  First, he cites a discussion of Tosefot in Masekhet Shabbat (85a) concerning the verse in Sefer Devarim (19:14), "Do not move your fellow's boundary-line."  Beyond the primary meaning of the verse, the Gemara there in Shabbat explains it as referring as well to planting two types of seeds in close proximity to one another, rather than keeping them at a distance from one another, as ancient farmers advised.  (Rashi there in Shabbat understood the Gemara's interpretation of the verse differently; see Maharsha.)  Tosefot therefore question why somebody who violates the prohibition of kil'ayim by planting grain and grapes together is not liable for two sets of malkot – for transgressing the specific prohibition of kil'ayim, and for transgressing the general prohibition of "moving a boundary-line."  Tosefot answer that this violator is not liable to malkot for "moving a boundary-line" because the other prohibition derived from this verse – the actual moving of one's neighbor's boundary – does not render one liable to malkot, given that it is a lav ha-nitan le-tashlumin.  One who moves a boundary marker must, of course, return the stolen land, and is thus not liable to malkot.  Tosefot claim that since malkot does not obtain in one instance of "moving a boundary-line," it is inapplicable also in the case of the verse's secondary meaning, when one plants two types of seeds near one another.

            Rav Leventhal suggests applying Tosefot's theory to ona'a, as well.  Since one does not receive malkot in cases of ona'a involving moveable property, in which case he has violated a lav ha-nitan le-tashlumin, he is likewise exempt from malkot even in the other instance of ona'a – real estate transactions, where no payment is involved.

            Secondly, Rav Leventhal asserts that the category of lav ha-nitan le-tashlumin is not limited to violations that incur a mandatory compensation payment.  Rather, it includes all transgressions committed against one's fellow that allow for the possibility of monetary compensation.  The literal translation of lav ha-nitan le-tashlumin is "a prohibition that lends itself to payment."  It includes not only instances where the perpetrator is obligated by Halakha to pay compensation, but also any situation where compensation is possible, even if it is not obligatory.  In the case of ona'a involving a land transaction, even if the Torah does not annul the sale, the violator can – and perhaps ethically should – offer to compensate the victim for his loss.  Therefore, since this prohibition – even in the case of real estate transactions – indeed "lends itself to payment," malkot is not warranted.

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            The opening section of Parashat Bechukotai describes the blessings that God promises to bestow upon Benei Yisrael if they faithfully observe His commandments.  The Ramban, in his commentary (26:11), explains these verses to mean that when Benei Yisrael as a nation observe the mitzvot, "their matters will not be run naturally at all, not regarding their body, not regarding their land, not regarding them as a whole and not regarding any individual among them."  Ideally, the Ramban claims, Benei Yisrael are not dependent on natural means of preservation such as medical treatment.  From here the Ramban proceeds to present a famous and controversial theory to the effect that a Jew in his ideal state should not seek medical care, and should instead turn only to the Almighty in situations of illness.  He claims that during the time of prophecy, the righteous among the nation would approach not a physician, but rather a prophet, when they took ill.  The Ramban most likely did not advise refraining from medical treatment as a practical approach (he himself is said to have worked in the medical field), but rather held that in Benei Yisrael's ideal condition, they are under the direct providence of God and therefore have no reason to consult physicians.

This approach stands in stark contrast to the Rambam's strident remarks on this subject in his commentary to the Mishna (Pesachim, chapter 4).  The Rambam held that medical care is no different from eating food and drinking water to "cure" oneself of the "illnesses" of hunger and thirst.  Just as the Torah most certainly does not advocate abstaining from food and drink, so does it not expect – even under ideal conditions – that one deny himself the services of medical experts.

An interesting question arises as to whether the Ramban applied his position even to preventative medicine.  Is the ideal, according to the Ramban, to ignore medical science altogether, or only not to seek medical attention in situations of illness?  Would the Ramban sanction seeking medical advice during the times of the prophets for the purpose of maintaining good health?

This likely hinges on what appear to be variant texts of the Ramban's commentary.  In prevalent editions, one sentence of the Ramban's commentary reads, "…their matters will not be run naturally at all…for God will bless their bread and water, and eliminate illness from their midst, to the point where they will not require a physician or to protect themselves through any type of medicine…"  According to this version of the text, the Ramban clearly saw it as an ideal to not even "protect oneself" through natural medical means.

However, Rabbenu Yona, in his printed derashot, cites this passage from the Ramban's commentary differently.  In place of the word le-hishtamer ("to protect oneself"), we find in Rabbenu Yona's citation the word le-hishtamesh, "to make use of [any type of medicine]."  (This discrepancy between the prevalent texts and Rabbenu Yona's citation was observed by Rav Yaakov Kopel Schwartz, in his work Yekev Efrayim.)  According to this version, it is at least possible that the Ramban refers only to medical treatment to cure illness and injuries, and not to preventative medicine.

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            In the beginning of Parashat Bechukotai, the Torah describes the blessings that God promises to bestow upon Benei Yisrael in reward for their faithful observance of the Torah.  The first verse reads, "If you follow My statutes and you observe My commandments, to perform them."  Rashi, commenting on this verse, cites the famous passage in Torat Kohanim that interprets the verse's opening clause – "If you follow My statutes" – as a reference to Torah study.  Since the verse continues by speaking of mitzva observance – "and you observe My commandments, to perform them" – the first clause must be referring to Torah learning.  As many writers have noted, Rashi does not actually mention "Torah study," but rather "she-tiheyu ameilim ba-Torah" – "that you shall toil in Torah."  The rewards described here are promised if Benei Yisrael not only observe the commandments and study Torah, but also "toil," or assiduously exert themselves, in the study of Torah.

            We might perhaps gain a clearer understanding of this common term – ameilut ba-Torah (exertion in Torah) – by taking a closer look at the phrase which Chazal interpret as referring to this concept: "Im be-chukotai teileikhu," which literally means, "If you walk with My statutes."  Chazal apparently understood this as referring to "walking" with Torah study, bringing this pursuit with oneself wherever he goes.  A person who is amel ba-Torah, who intensively devotes himself to Torah learning, brings his studies with him at all times.  The pursuit of knowledge and understanding of Torah simply encompasses his entire life, as he sees this pursuit as a lifelong ambition and goal.

            If so, then we perhaps arrive at a new explanation of a clause in the Haggada regarding a verse in Parashat Ki-Tavo (26:7) that makes reference to the amal that Benei Yisrael endured in Egypt ("ve-et amalenu").  According to the Haggada, this refers to ha-banim, the drowning of Benei Yisrael's children, rather than to the backbreaking labor they were forced to perform.  A number of different theories have been proposed to explain how or why Chazal arrived at this understanding of the word amal, as a reference to the children, rather than to slave labor.  One particularly insightful explanation is cited in the name of Rav Shlomo Zalman Auerbach, who suggested that Chazal understood the word amal as a reference to hard work that one enjoys and performs willfully, and for this reason Torah study is described as ameilut ba-Torah.  The Sages therefore identified the ameilut of Egypt as a reference to children, as child-rearing – like Torah learning – is a form of "toil" in which one engages with love and willful enthusiasm.

            According to our inference from Rashi's comments here in Parashat Bechukotai, we might suggest a slightly different approach.  Amal, as we said, denotes a pursuit that occupies the totality of a person's life, a responsibility that becomes his life's work.  For this reason, perhaps, the Haggada identified Benei Yisrael's "amal" in Egypt with their children.  As every parent knows, child-raising is a task that occupies a parent's entire life, a responsibility that he or she bears at every moment of the day, every day of the week.

            Thus, Torah study and child-raising are both described with the term amal because a person "walks" with these two responsibilities, devoting himself to these tasks at all times throughout his life, wherever he goes.

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            In the opening verses of Parashat Bechukotai, God promises Benei Yisrael numerous blessings as reward for their obedience, and He initially describes the blessing of plentiful rainfall and agricultural prosperity.  He then declares, "Ve-natati shalom ba-aretz" – "I shall make peace in the land."  Rashi comments, "Lest you say, 'There is food and drink, but if there is no peace there is nothing' – the verse therefore states after all this, 'I shall make peace in the land'."  God here promises to bestow "peace in the land" because without peace, all the previous blessings of economic prosperity are worthless.

            The Ketav Sofer explains Rashi's comments in light of Ibn Ezra and the Ramban's interpretation of the word shalom (peace) in this verse.  These commentaries claim that the Torah does not refer here to peaceful relations with other nations, about which the verse speaks subsequently: "the sword shall not pass through your land."  Rather, "peace" here refers to peace among Benei Yisrael themselves, that they will not be broken into warring factions.  This achievement, the Ketav Sofer writes, results from the admirable but unfortunately rare quality of histapekut – a sense of satisfaction with what one has.  When people feel content with their lot in life, they are less inclined to feel envious of their neighbors and peers, and hence less inclined to quarrel with one another.  The promise of "Ve-natati shalom ba-aretz" thus means that beyond the promise of economic success, God will bestow upon the nation the invaluable gift of histapekut, the ability to feel content with the wealth they have accumulated, rather than constantly striving for more.  This will, in turn, result in a degree of peace and stability within the nation.

            The Ketav Sofer explains Rashi's comments in this vein.  Without shalom, without this ability to feel content, "there is nothing," one essentially has nothing.  For a person who cannot experience the feeling of contentment, it makes no difference whether he has been given much or nothing at all; either way, he feels that he does not have what he needs.  Only with shalom, if a person has the ability to feel that he is truly blessed, that he has been given what he needs, do the blessings of wealth and prosperity have value.

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            Parashat Bechukotai contains the section known as the tokhecha, which describes the horrors that the Torah threatens will befall Benei Yisrael should they betray God and disobey His commands (26:14-46).  Among the calamities described is the destruction of the Beit Ha-mikdash: "I will make your Temples desolate, and I will not smell your fragrant offerings" (26:31).

            The Netziv, in his Ha'amek Davar, advances a characteristically novel interpretation of this verse.  According to the Netziv, the Torah here instructs that after the Temple's destruction, it becomes forbidden to bring only sacrifices described by the term rei'ach nicho'ach – "fragrant offering."  As the Netziv demonstrates, each of the various types of sacrifices is referred to in at least one instance in the Torah with this term, with the exception of the korban pesach, to which the Torah never refers as rei'ach nicho'ach.  Hence, since God here vows that following the destruction of the Beit Ha-mikdash He will not accept only our rei'ach nicho'ach sacrifices, the paschal offering may be brought even after the destruction.  The Netziv finds an indication in the first chapter of Masekhet Sanhedrin that the korban pesach was offered still during the time of Rabban Gamliel, who lived after the Temple's destruction.  He thus claims that as opposed to all other sacrifices, which were discontinued after the destruction, the korban pesach ritual remained in practice until the brutal oppression that followed the Bar-Kokhba revolt, which resulted in the dismantling of the altar in Jerusalem.

            The Netziv does not explain the precise difference between the korban pesach and other sacrifices, why the term rei'ach nicho'ach is applicable to all sacrifices other than the paschal offering.  The explanation, perhaps, is that this term, as Rashi explains (to Vayikra 1:9, based on Torat Kohanim), refers to the nachat ru'ach, or gratification, that the Almighty "experiences," as it were, when we faithfully obeys His commands.  When the Torah speaks of a sacrifice as a rei'ach nicho'ach, it means that the individual earns God's favor through the obedient compliance with His laws with respect to the given korban.  The term nicho'ach ("fragrance") is metaphoric for the pleasure God takes, so-to-speak, in our observance of the mitzvot.  One might argue that while korbanot generally indeed serve this purpose, to earn God's favor, this is not the case regarding the korban pesach.  The mitzva of korban pesach is introduced in Sefer Shemot (12:24-27) as an eternal commemoration of the pesach ritual conducted in Egypt.  That korban, of course, was offered as a means for Benei Yisrael to protect themselves from the plague that killed the Egyptian firstborn.  For this reason, perhaps, the Torah never describes the korban pesach as a rei'ach nicho'ach, as a "fragrant" or "pleasing" offering to God.  Its function is not to earn God's favor, but rather as a reenactment of the night of the Exodus, when this offering protected our ancestors from the death and destruction of the tenth and final plague.