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April 23, 2014 / 23 Nisan, 5774
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Posts Tagged ‘Kesef Mishneh’

Eidim Zomimim: Conspiring Witnesses

Thursday, August 23rd, 2012

In this week’s parshah the Torah discusses the halachos of eidim zomimim. The Gemara in Makkos 2a explains that eidim zomimim is when one set of two or more witnesses testifies against someone, and another set of witnesses testifies that the first set of witnesses was with them and therefore could not have known their testimony. The Torah says that the later set of witnesses is believed and the testimony of the first set of witnesses is disqualified. If beis din had not yet carried out the verdict that the first set of witnesses intended to impose, the verdict is placed on the first set of witnesses. This is known as kasher zamam v’lo kasher asah. Once the verdict of the first witnesses is carried out the witnesses are not punished.

Generally, one only receives lashes for an aveirah that was performed with an action. The Gemara in Temurah 3a lists three different aveiros that are exceptions to that rule: one who does temurah (attempting to switch kedushah onto another animal); swearing falsely; and cursing one’s fellow with Hashem’s name. Tosafos asks: why did the Gemara not also mention eidim zomimim and motzi shem ra, for which one receives lashes and are also aveiros performed with speech alone and without the performance of any other action? Tosafos’s answer: regarding eidim zomimim and motzi shem ra, the Torah says explicitly that one receives lashes; therefore the Gemara did not need to write this.

The Brisker Rav offers another solution to Tosafos’s question. He suggests that the lashes that eidim zomimim and practitioners of motzi shem ra receive are different than the lashes one receives for transgressing another lav in the Torah. Generally, lashes are administered simply as a punishment for transgressing the lav. Regarding eidim zomimim and motzi shem ra, one does not receive lashes for transgressing the lav since the lav did not have an action associated with it. The lashes are administered as a result of one being an eid zomaim or a motzi shem ra. When one transgresses the lav of eidim zomimim or motzi shem ra he attains a status of an eid zomaim or motzi shem ra, and it is that status that causes him to receive lashes.

This can also be the explanation as to why the Gemara in Kesubos 33a and the Rambam (Hilchos Eidus 18:4) say that eidim zomimim do not require a warning in order to receive their punishment. The reason for this is because their punishment does not directly result from a lav. Since their punishment comes from the status that they attained, they do not need to be warned.

We originally find this concept by the parshah of ben sorer u’moreh. The Rambam (Hilchos Mamrim 7:7) says that a boy’s father and mother must bring him to a beis din of three, then bring witnesses who testify that the boy stole from his father and acquired meat and wine with the money he stole, and ate the items after being warned not to. Beis din then administers lashes to the boy. If he repeats the action (stealing, eating the meat, and drinking the wine), his parents must bring him to a beis din of 23. After hearing testimony from witnesses, beis din must check to see if he has two hairs and that the hairs of his lower beard have not completely grown in. If they have grown in, he is exempt from the laws of ben sorer u’moreh. However, if he has two or more hairs and does not have a complete lower beard, and he is between the age of 13 and 13 and three months, beis din stones him.

The Kesef Mishneh asks why the Rambam did not require that beis din check the boy’s hairs before administering lashes. Why did the Rambam only require him to be checked before killing him?

Additionally, the Gemara in Sanhedrin 78b suggests that the laws of ben sorer u’moreh should apply to a minor. But how can the Gemara entertain the possibility that we punish a minor?

Reb Chaim Soloveitchik, the Brisker Rav’s father, in his sefer on the Rambam, writes that the punishment of the ben sorer u’moreh does not directly result from a punishment for transgressing the lav associated with the ben sorer u’moreh. Rather, when one transgresses that lav he attains the status of a ben sorer u’moreh – and a ben sorer u’moreh receives the punishment of death. This explains how the Gemara could entertain the possibility that a minor could be liable for being a ben sorer u’moreh, since minors are only exempt from punishments of lavim. However, even a minor could be punished for being a ben sorer u’moreh. The lashes that a ben sorer u’moreh receives are also for attaining the status of a ben sorer u’moreh – and not for the lav. Yet all the requirements that must be met (i.e. his age and hairs) are only requirements for the part of his sentence whereby he receives death. The lashes are administered even if those requirements are not met. Therefore, the Rambam did not write that beis din must check him before administering lashes.

Daf Yomi

Wednesday, June 27th, 2012

Rebirth Of Sorts
‘Immersing Contaminated, Emerging Pure’
(Niddah 42a)

A mikveh purifies the impure. Utensils, clothing, and impure persons who immerse or are immersed in a mikveh become pure. When exactly does that transformation take place? Can we pinpoint the moment?

An interesting statement appears in the Rambam (Hilchos She’ar Avos Hatumah 6:16). He writes that if a person in a mikveh is touching a neveilah, sheretz, or some other impure object, he is impure, “but when he emerges from the mikveh he becomes pure…and the same applies to someone who stepped on a mishkav lying in a mikveh.” Concerning a zav, who defiles an object on which he sets his weight, the law is as follows: If he enters a mikveh and steps on an object on the floor of the mikveh, the object becomes impure, “but when the mishkav emerges from the mikveh, it becomes pure again.” In other words, when the object emerges from the mikveh, its status metamorphoses into one of purity.

Emerging From A Mikveh Purifies

A sensational chidush emerges from the Rambam’s words, as the Kesef Mishneh writes (ibid): “It seems that the impure becomes pure when he emerges from the mikveh but not while he is still inside it.” Thus, if someone touches an impure person while he’s still immersed in the water, one becomes impure even though he is standing in a mikveh. Hence, in theory, it’s possible for someone to immerse in a mikvehand not become pure!

Immersion At Sunset

Impure kohanim need to immerse in a mikveh and await the arrival of sunset. That is, an impure kohen must immerse before the sun sets and afterwards, “when the sun sets, he becomes pure” (Vayikra 22:7). After sunset, these formerly impure kohanim may eat terumah (before sunset they may eat maaser sheini), and after they offer the required sacrifices, they may eat the meat of sacrifices.

If an impure kohen immerses right before sunset but only sticks his head out of the water after sunset, the law is that he isn’t pure until after sunset of the following day (Gilyonei Hashas, Shabbos 35a; Or Sameiach, Ch. 12, Hilchos Metamei Mishkav Umoshav). The author of Gilyonei Hashas (ibid.) writes that the source for this law is the Gemara (Shabbos, ibid.), which says that an impure person who awaits the arrival of sunset to be completely pure “should immerse in the sea and emerge.” The Gemara emphasizes that he must emerge from the water before sunset. If he doesn’t, he only becomes pure after sunset of the following day.

The Achronim discuss this Kesef Mishneh at length and assert that the statement of the Rambam is “a very new thing.” This interpretation of the Gemara, they believe, is not evident in the words of other Rishonim (see Or Sameiach, ibid, and Makor Baruch, 39).

He Who Immerses With A Sheretz In Hand

Many are familiar with the Gemara (Taanis 16a) that immersion does not purify a person who immerses in a mikveh while holding a sheretz: “If a person holds a sheretz, even if he immerses in all the water in the world, the immersion is to no avail; if he discarded it, as soon as he immerses in 40 se’ah, the immersion helps him.”

It is interesting to discover that different poskim derive different proofs regarding the Kesef Mishneh’s interpretation of the Rambam from this famous law. Rabbi Meir Arik, zt”l, writes that it teaches us that someone who immerses in a mikveh becomes pure while still in the water since, as the Gemara says, “if he discarded it, he is pure.” Why “if he discarded it”? Doesn’t he have to emerge from the water? Evidently not (Tal Torah, Yerushalmi, Terumos).

Kisvei Eish (3:32), on the other hand, derives the opposite conclusion from this case. Why does the Gemara say “as soon as he immerses”? After all, he’s already in the water. The Gemara evidently means that the person must immerse again. In other words, a person who enters a mikveh holding a sheretzis impure until he discards it, emerges from the water, and then immerses himself again.

Immersion As Being Born Anew

We should conclude with the careful clarification of Rabbi Yonah Mertzbach, zt”l, as to why immersion helps the impure person only when he emerges from the water. He writes that the inner essence of immersion is the sinner’s “disappearance” in the water and his rebirth, figuratively speaking, when he emerges, since a human being cannot exist in water. The person leaves, so to say, his previous world and enters a new one. Therefore, he becomes pure only when he leaves the water (Aleh Yonah).

Why Women Are Obligated To Build The Beis HaMikdash

Wednesday, June 6th, 2012

The Rambam, in Hilchos Beis Habechirah 1:12, derives from the pasuk in this week’s parshah, “u’veyom hakim es haMishkan… – and on the day the Mishkan was set up…” (Bamidbar 9:15), that the Beis HaMikdash can only be built by day, not by night. Further in that halacha the Rambam writes that both men and women are obligated in the mitzvah of building the Beis HaMikdash. The Kesef Mishneh explains that the source for the halacha that women are obligated in this mitzvah is from the pasuk in parshas Vayakhel: “v’kol ishah chachmas lev beyada tavu – and every wise-hearted woman spun with her hands.”

The Achronim are bothered by this obvious question: Why are women obligated in this mitzvah? Since it only applies by day, it should fall under the category of mitzvos assei she’hazman gramma (time- sensitive mitzvos) that women are exempt from fulfilling?

The answer by some Achronim is based on the following Yerushalmi: The Yerushalmi Yoma 1:1 says that the mitzvah of building the Beis HaMikdash essentially applies even by night – except that if it is built at night it is not fit for the avodahs of the daytime. If the mitzvah only applied by day, a Beis HaMikdash that was built at night should not be fit for any avodah. This indicates that the mitzvah applies even by night; thus it is not a mitzvas assei she’hazman gramma, and women are obligated in it.

Another suggested answer is that the Rambam says in Sefer Hamitzvos (mitzvas assei 20) that the building of the Beis HaMikdash’s vessels is included in the mitzvah of building the Beis HaMikdash. The Aruch Laner, on Sukkah 41a, says that the vessels of the Beis HaMikdash can be built at night. Therefore the mitzvah of building the Beis HaMikdash applies by night as well. It is therefore not a mitzvas assei she’hazman gramma.

Even according to the Achronim who disagree with the Aruch Laner and hold that the vessels must be built by day (just as the Beis HaMikdash itself), they nevertheless agree that the Menorah may be built at night since its avodah (lighting it) may be performed at that time. Since in the Rambam’s view the mitzvah to build the Menorah is included in the mitzvah of building the Beis HaMikdash, part of this mitzvah is continuous and thus not considered a mitzvas assei she’hazman gramma.

The sefer, Har Hamoriah (Beis Habechirah 1:28), says that there are two parts in the mitzvah of building the Beis HaMikdash: the actual building, and the planning, measuring and bringing of supplies. Only the actual building may not be done at night. The other aspects of the mitzvah, however, may be performed at night. Hence it is not a mitzvas assei she’hazman gramma.

The Rishonim, on Kiddushin 29a, ask why the Torah feels the need to write a pasuk exempting a woman from the obligation to perform the mitzvah of bris milah on her son. After all, she should obviously be exempt since it is a mitzvas assei she’hazman gramma? The Ramban and the Ritvah answer that women are only exempt from mitzvos assei she’hazman gramma on mitzvos that pertain to themselves. But when the mitzvah requires them to do something for someone else, they are not exempt. For example, without the exemption in the pasuk, a woman would be obligated to perform a bris milah on her son.

The Minchas Chinuch (mitzvah 112:3) understands the Ritvah’s answer to mean the following: Mitzvos can be classified into two categories; those that are obligations on the individual to perform, and those that require that a certain situation take place (gavra or cheftza). The Minchas Chinuch explains that the mitzvah on the parents to perform a bris milah on their son is not a mitzvah whereby they are obligated to perform a certain act; rather that they ensure that a certain situation is accomplished – namely that their son should have a bris milah. Regarding these types of mitzvos women are not exempt, even if it is a mitzvas assei she’hazman gramma. Therefore, if the Torah did not write a pasuk that exempted women, they would be obligated to ensure that a bris milah was performed on their son.

Printed from: http://www.jewishpress.com/judaism/parsha/why-women-are-obligated-to-build-the-beis-hamikdash/2012/06/06/

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