[KollelH blog] maasai

Preempting The Death Penalty

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 Rush (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 Rush (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 Rush 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 Rush 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 Rush as I did. I believe that the Rush is being taken out of context. The Rush is discussing the Mishnah that says that there is no aveilus for people who are killed by beis din. The Rush 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 Rush never meant to say that anyone who transgresses after being warned is a mummar l'hachis regarding the halacha of moridin; rather the Rush is saying that regarding aveilus we consider him a mummar, comparable to a mummar l'hachis – whereby aveilus does not apply.
With this understanding of the Rush the question does not start because the Rush never said that we could apply the halacha of moridin to one who sins after being warned with his life. Therefore it is clear why the Torah commanded us not to kill a sinner until after his day in court – since he cannot be killed before then. And one who does kill him prior to his day in court will be considered a murderer.
For questions or comments, e-mail RabbiRFuchs@gmail.com.

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Posted By KH to KollelH blog at 7/19/2012 11:53:00 PM

One can easily possess wisdom, but the wisdom must possess him.

A NEEDY person, is a pauper no matter how much money he posseses. One who (feels he) needs less, is enriched just with life's n

One who offers honor must truly be an honored man to give some away. One who is looking to receive honor obviously lacks it.

[KollelH blog] Korach

Shelichus

The Gemara in Kiddushin 41b derives from a pasuk in this week's parshah the concept of shelichus (acting on one's behalf). The pasuk says, "kein tarimu gam atem terumas Hashem – so you too shall remove the terumah of Hashem." The Gemara explains that the word gam (too) is superfluous; thus we draw from this that another person may remove terumah for you on your behalf.

The Gemara in Baba Metzia 22a says that, based on this pasuk, we learn another halacha regarding shelichus. The Gemara says that just as an action that you perform is with your knowledge, so too is it with your knowledge when your agent acts on your behalf. One cannot be your shaliach unless you know about it.

The Kitzos Hachoshen (105:1) asks the following fundamental question (preceded by pertinent information): There is another manner – referred to as zicheya – whereby one can act on another person's behalf. Regarding this other form, the Gemara says that one may act on another's behalf even without the knowledge of the other person. This is called zachin l'adam shelo befanav – one may acquire for another if it is beneficial for him, even if he does not know it. Several Rishonim opine that the mechanics behind this form of acting on another person's behalf works with shelichus. Rashi in Gittin 9b says that whenever one is acting on another person's behalf, it is considered as if he was appointed to be a shaliach (to do that action) for the sender. This is called zicheya mi'din shalichus. The Kitzos asks: How can zicheya work without the individual's knowledge if it is working via the mechanics of shalichus, and shelichus requires the knowledge of the one for whom you are acting?

The Kitzos suggests that this is the reason that the other Rishonim disagree and say that zicheya is not mi'din shelichus. They say that it works instead through the halacha of yad, the fact that one's hand acquires for him. The Kitzos goes so far as to say that even the Rishonim who say that that zicheya is mi'din shalichus do not mean that it is considered as if one made him an agent; rather, it is a gezeiras hakasuv (it works just as a shaliach works).

One could argue with the entire premise of the Kitzos. We must look at the context in which the Gemara in Baba Metzia was referring to, namely that one must be aware that there is an agent working on his behalf. The Gemara there was discussing the sugya of yi'ush shelo midas – relinquishing ownership of a lost object without the knowledge that it is lost. Rashi, at the beginning of the sugya, writes that the whole sugya is only addressing a scenario in which one would probably give up hope when he learns that the item is missing. In a scenario whereby we know for certain that one would give up hope, there would not be any machlokes and all would agree that it now works – prior to the individual actually knowing.

The Gemara brings a proof from the following Mishnah: In a case of one who takes off terumah for his friend without his friend's knowledge, there are scenarios in which it works and those in which it is not considered as if terumah was removed. If the owner, upon hearing that his fellow removed terumah for him, responds in a manner that reveals that he is pleased, the terumah is then valid. But if his response tells us that he is upset about this, the terumah is not valid. The Gemara says that this proves that even though he did not know at the time, it is valid retroactively since he later knew about it. The same rule should apply regarding the relinquishment of ownership of a lost item.

The Gemara answers that there is no proof from this Mishnah, since the entire Mishnah is referring to a case where the owner had previously made him his shaliach.

The Gemara compares the knowledge required for yi'ush to that of a shaliach. The parallel dictates that just as if one does not know that his item is lost, even though he will probably relinquish his ownership when he learns that it is lost, we do not consider it as if he gave up hope. Similarly, even if one will probably be happy to learn that his fellow separated terumah for him, it is not considered as if he made him his shaliach since he does not presently know.

However, the concept of zicheya is not applicable when we can only assume that the individual will "probably" want the item. We apply zicheya when we are certain that the individual for whom we are acting will be pleased with the outcome. Under these circumstances we would even say that one would relinquish his rights immediately. Therefore we can say that even shelichus would work when we are certain that one would want another to act on his behalf. We can also say that zicheya works via the mechanics of shelichus, even though one is unaware at the time that someone is acting on his behalf.

For questions or comments, e-mail RabbiRFuchs@gmail.com.

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Posted By KH to KollelH blog at 6/21/2012 12:16:00 AM

[KollelH blog] shilach

The Punishment Of The Mekoshesh

At the conclusion of this week's parshah, the Torah writes about the mekoshesh eitzim – the individual who desecrated Shabbos in the midbar by gathering wood. The pasuk says that since it was uncertain what the halacha was concerning one who is mechallel Shabbos, the mekoshesh was placed in custody until Hashem gave instructions as to what to do. Hashem then told Moshe Rabbeinu that the man is to be put to death by stoning; and so he was.

The Gemara in Sanhedrin 78b says that it was certain that one who desecrates Shabbos deserves death – as the pasuk states earlier: "mechallelehah mos yumas" (Shemos 31:14). The only uncertainty was the form of death he should receive.

Tosafos in Sanhedrin asks why Moshe was uncertain as to what form of death the mekoshesh deserved. Since the Torah previously said that one who desecrates Shabbos should be put to death, the general rule is that unless otherwise specified the Torah refers to chenek (strangulation) when ordering death. Tosafos answers that Moshe reasoned that one who desecrates Shabbos in public is likened to one who does avodah zarah, since by desecrating Shabbos in public one denies that Hashem created the world (Chullin 5a). Therefore Moshe thought that perhaps the punishment for desecrating Shabbos in public should be by stoning, which would follow the same punishment for one who does avodah zarah. However, Hashem answered that one who desecrates Shabbos deserves stoning for the aveirah of desecrating Shabbos alone.

Reb Akiva Eiger asks a powerful question on Tosafos. According to Tosafos there is room to say that one who is mechallel Shabbos is punished in the same way as one who does avodah zarah. How then can we learn from this incident that one who is mechallel Shabbos in private deserves death by stoning? Perhaps Hashem agreed with Moshe's logic that when one is mechallel Shabbos in public it is comparable to doing avodah zarah (which is punishable by stoning), and thus it was for that reason that the mekoshesh was stoned. But one who is mechallel Shabbos in private is not compared to one who performs avodah zarah and therefore should not deserve death by stoning – but rather by strangulation – since the Torah did not specify the form of death he deserves.

Reb Elchanan Wasserman, Hy"d (Kovetz Shiurim Baba Basra 356), based on Tosafos in Baba Basra 119 (d"h shenemar), explains that Moshe Rabbeinu understood that the halacha of a mechallel Shabbos in public must be the same as one who does it in private, since they are both derived from the aforementioned pasuk, "mechallelehah mos yumas." He questioned whether both (public and private desecrations of Shabbos) deserve strangulation, in compliance with the general rule that death is by strangulation unless specified otherwise, or since regarding chillul Shabbos in public there is reason to assume that it deserves stoning. (Stoning is more stringent and likened to avodah zarah; therefore the entire pasuk refers to stoning.) Hence, even a mechallel Shabbos in private would deserve stoning.

Rabbeinu Bichaya, on this parshah, says that when Hashem informed Moshe as to what to do with the mekoshesh the pasuk repeats the fact that he was deserving of death, for as it says, "mos yumas ha'ish; ragom oso ba'avanim – the man shall be put to death; stone him." Why does the Torah reiterate that the mekoshesh deserved death? After all, the Gemara says that Moshe was certain about that and only questioned the form of death. Rabbeinu Bichaya explains that the extra words, "mos yumas," were written in order to connect this pasuk to the earlier pasuk, "mechallelehah mos yumas." In other words the Torah is explaining that it was earlier referring to stoning, when it wrote "mos yumas" regarding the halacha about one who desecrates the Shabbos.

I want to suggest that even a mechallel Shabbos in private is comparable to avodah zarah. The Gemara that states that the act of chillul Shabbos done only in public is referring to when one becomes a mumar for all of the Torah. However, even in private the aveirah of desecrating Shabbos is comparable to avodah zarah. Rashi, in Chullin 5a, explains that one who does avodah zarah denies Hashem's existence. One who is mechallel Shabbos denies Hashem's actions, for he is testifying that Hashem did not rest by ma'asei bereishis. This should apply to one who desecrates Shabbos in public – as well as in private.

Additionally, the Gemara in Yevamos 6a says that the lav of Shabbos is more stringent and perhaps cannot be nidche by an assei. Rashi explains that the reason that the lav of Shabbos is more stringent is because it is comparable to avodah zarah. This Gemara is not only referring to one who desecrates Shabbos in public, but in private as well.

Therefore the logic that Moshe entertained that one who is michallel Shabbos should deserve the same punishment as one who does avodah zarah applies equally to one who does so in public as well as in private. So when Hashem answered that the mekoshesh deserves death by stoning, the same should apply to one who desecrates Shabbos in private – even if the punishment of stoning stems from the avodah zarah aspect of chillul Shabbos.

For questions or comments, e-mail RabbiRFuchs@gmail.com.

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Posted By KH to KollelH blog at 6/15/2012 02:02:00 PM