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April 19, 2014 / 19 Nisan, 5774
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Posts Tagged ‘Sefer Hachinuch’

Preempting The Death Penalty

Wednesday, July 18th, 2012

In this week’s parshah the Torah writes about a prohibition on killing a murderer prior to his trial. As the pasuk says: “…v’lo yamus harotzeach ad amdo lifnei haeidah lamishpat – … so that the murderer will not die until he stands before the assembly for judgment” (Bamidbar 35:12). The same rule applies to anyone who commits an aveirah that is punishable by death; no one is permitted to kill him prior to his trial in beis din, including the witnesses that warned him and witnessed the aveirah. The Sefer Hachinuch (mitzvah 409) writes that if one kills a transgressor prior to his trial, he is regarded as a murderer.

Anyone who performs any aveirah l’hachis (a transgression to spite Hashem, not because of temptation) is rendered a mummar l’kol haTorah. The Rosh (Moed Katan 3:59) says that one who is warned by two witnesses that the action he is about to perform is prohibited and punishable by death and responds that he will commit the aveirah despite the warning, attains the status of a mummar l’hachis. The reason is this: one performing the aveirah because of temptation would not do so after being warned that his life is on the line. Rather, we can assume that he is acting to spite Hashem.

Reb Chaim Ozer Grodzensky (Achiezer 3:53) writes that he discussed the following question with his wife’s grandfather, Reb Yisroel Salanter, the gaon ohr yisrael: the Gemara (Avodah Zarah 26b) says that one may kill a mummar l’hachis. (This is brought down in several places by the Rambam, including Rotzeach 4:10, and in the Shulchan Aruch, Choshen Mishpat 425:5.) This is known as “moridin v’eino malin – throw him into a pit and do not save him.” The view of both the Rambam and the Shulchan Aruch is that if possible one should publicly kill the mummar with a sword. The Rosh (Teshuvos 32:4) says that one should only kill via a gramma (indirectly), i.e., throw him into a pit and remove the ladder.

Question: How can the Torah say that we cannot kill a murderer or any transgressor until after his trial in beis din, despite the fact that he was warned in front of witnesses? After all, according to the Rosh the transgressor has the status of a mummar l’hachis (since he is not acting out of temptation), thereby permitting anyone to kill him as per the halacha of moridin v’eino malin.

Reb Chaim Ozer suggested two answers, but believed that the question demands more analysis. His first suggestion is that the pasuk is teaching us that although one is permitted to kill the individual who sinned by means of moridin, the Torah nevertheless prohibited killing him in this case until after his trial in beis din. However, Reb Chaim Ozer rejects this answer for several reasons. One reason: Why does the Chinuch say that one who kills the sinner is regarded as a murderer? Since he could kill him from the halacha of moridin, he should not be considered a murderer. The Chazon Ish (Yoreh De’ah 2:17) maintains that the halacha of moridin only applies when the sinner cannot be tried in beis din due to technical problems, i.e., no witnesses. Therefore, in a case to be brought in beis din one may not apply the halacha of moridin.

The second solution is that the pasuk is referring to a scenario in which we know that the individual did teshuvah. Therefore he can no longer be killed under the halacha of moridin. However, teshuvah does not remove the death penalty from beis din. Hence, the Torah says that we should wait until he is found guilty at trial before killing him.

I would like to suggest that the question does not start. I was scared to say that I learned the Rosh differently than Reb Chaim Ozer and Reb Yisroel Salanter. But, Baruch Hashem, I found afterwards that the Chazon Ish (Yoreh De’ah 2:12) learns the Rosh as I did. I believe that the Rosh is being taken out of context. The Rosh is discussing the Mishnah that says that there is no aveilus for people who are killed by beis din. The Rosh explains that this is because since they were warned that their life was on the line but nevertheless sinned, they are obviously not acting out of temptation; thus, they are comparable to a mummar l’hachis. I think that the Rosh never meant to say that anyone who transgresses after being warned is a mummar l’hachis regarding the halacha of moridin; rather the Rosh is saying that regarding aveilus we consider him a mummar, comparable to a mummar l’hachis – whereby aveilus does not apply.


Wednesday, May 16th, 2012

In Behar, one of this week’s parshiyos, the Torah commands us in regard to some of the laws of buying and selling. The pasuk says, “Vechi simkiru mimkar la’amisecha … al tonu ish es achiv – When you make a sale to your fellow … do not afflict one another.” The Gemara in Baba Metzia 51a derives from this pasuk that one may not overcharge when selling an item without informing the buyer. This is referred to as ona’ah. The Gemara says that if one charges more than a sixth more than the market value of an item, the sale is void. If one charges less than a sixth more, the sale is valid. If one charges exactly a sixth more, the sale is valid; however, the seller must return the overcharge.

The Rush, in the fourth perek of Baba Metzia, says that he is not sure whether one is prohibited from intentionally charging less than a sixth more than the market value. Even though the sale is valid and the seller does not have to return the overcharge, perhaps it is prohibited – for this too is considered ona’ah. The reason that the sale is valid and the seller may keep the overcharge is because we assume that the buyer will be mochel (forgo) on a small percentage. The Smah (Choshen Mishpat 227:14) says that one may not claim that he was not willing to forgo the overcharge of less than a sixth. Or, says the Rush, perhaps it is part of the normal process of transactions to charge a little more – and it is not considered ona’ah.

The Ramban, in his commentary on the Torah, says that even though the Gemara in Baba Metzia 56b derives from a pasuk that ona’ah does not apply to land, the prohibition nevertheless applies. The exclusion is only on the monetary aspect, but if one charges more than a sixth for the sale of land he will have transgressed the lav. The reason that one does not have to return the ona’ah of a real estate purchase, even if it is more than a sixth extra, is because we assume that people will forgo the extra amount – just as they would when it is less than a sixth on the sale of an item. However, in both circumstances, it is forbidden to do so.

The Sefer Hachinuch (mitzvah 337) takes a different view on this matter. He says that one is completely permitted to charge up to a sixth more than the market value of movable objects. He agrees with the Ramban that even though one does not have to return the extra amount that he charged for real estate, even if it exceeds a sixth, it is nonetheless forbidden to do so.

The Minchas Chinuch says that the Rambam agrees with the Sefer Hachinuch (that one is permitted to charge up to a sixth more for movable objects). He proves the Rambam’s view that it is permitted because the Rambam says that one does not receive lashes when he transgresses this prohibition. This is because it is nitein letashlumin (one must repay) i.e. he must return the overcharge. Since the halacha is that one is not required to return an overcharge of up to a sixth, he should receive lashes in that case since it is not returnable.

We find this concept by the prohibition of hitting another. If the wound is significant enough to require damages amounting to more than a prutah, the damager does not receive lashes since he must pay money. However, if the wound does not amount to damages worth a prutah he receives lashes since he cannot repay. Therefore, if it would be prohibited to charge up to a sixth more, the seller should receive lashes since he is not required to repay.

The Minchas Chinuch, however, says that this is not necessarily proof that the Rambam’s view is that one is permitted to charge up to a sixth more than the value of movable objects. This is so because, as mentioned earlier, the reason that one is not required to return the ona’ah of up to a sixth is because the buyer is mochel the extra amount. Hence, from a technical standpoint, one is required to return the extra amount – except that in this case he was mochel the obligation.

Printed from: http://www.jewishpress.com/judaism/parsha/overcharging/2012/05/16/

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