Halacha Brura and Birur Halacha Institute
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Halacha Brura and our Parsha
The Halacha Brura and Birur Halacha Institute has begun to publish a weekly column in the "Jewish Press", with short Divrei Torah on the weekly Parsha, based on the Birur Halacha.
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The Prohibition of Work on Chol haMoed
(based on Birur Halacha, Moed Katan 2a)
Our Parsha says: “Keep the holiday of Matzot, seven days…”, and the Gemara (Hagigah 18a) learns from this pasuk (and from other psukkim) that it is prohibited to work on Chol haMoed. But it’s not an absolute prohibition, and one is allowed to do work in order to prevent loss (davar ha’avaid), or for the benefit of the many, or something needed for the holiday.
Rabbenu Tam and the Rosh infer from this that the prohibition is midrabanan, and they explain that the psukim brought as sources for it are only “asmachta” and not the actual source. The Maggid Mishneh explains similarly the Rambam’s statement (Hilchot Yom Tov 7:1) that the prohibition is “midivrei sofrim”. They bring proof from the Yerushalmi that relates that one of the sages suggested to allow work on Chol haMoed, to prevent people from going idle.
On the other hand, Tosafot (quoting Rashi and Rashbam), the Tur (quoting the Rif) and other Rishonim hold that the drashot from the aforementioned psukim are actual drashot, and that therefore the prohibition is d’oraita. They prove this from the gemara, Moed Katan 11b, which differentiates between the prohibition on work by a mourner, which is midrabanan, and the prohibition on Chol haMoed, which is d’oraita.
Rabbenu Tam finds a difficulty with this view: if it’s d’oraita, why is work permitted in the exceptional cases such as prevention of loss, as we mentioned? The Ramban makes a compromise: the prohibition is d’oraita, but the Torah gave the sages discretion to decide which categories of work are prohibited and which are allowed, and they decided that in the case of prevention of loss (and the other exceptions), it is allowed. As to the proof from the Yerushalmi, the Ritva explains that only certain types of work are prohibited mid’oraita, but the sages prohibited various other types of work, to ensure the guarding of the d’oraita types; and the suggestion in the Yerushalmi that work should be allowed on Chol haMoed refers to those types of work.
R’ Yosef Karo, in his Bet Yosef, agrees to the Ramban. But the wording in his Shulchan Aruch is ambiguous. The Mishnah Brura says that it is appropriate to act according to the view that the prohibition is d’oraita, except for those types of work that are only d’rabanan even according to the Ramban.
Cooking in the Sun or by Microwave
(based on Birur Halacha, Shabbat 39a)
The 39 categories of work – “m’lachot” - prohibited on Shabbat are those m’lachot used in building the mishkan. This is learned from the proximity of the commandment of Shabat to the commandment of the mishkan, in our parsha. One of the m’lachot is cooking, since the materials used for dying the tent cloths of the mishkan were cooked. But cooking using only the heat of the sun is permitted. Two reasons are given for this: Rashi (Shabbat 39a) explains that cooking in the sun is not the ordinary way of cooking. R’ Moshe diTrani (Kiryat Sefer, Hilchot Shabbat 9) explains that this is different from the cooking in the mishkan, which was by fire.
Is cooking by microwave included in the prohibition of cooking on Shabbat? Obviously it is prohibited because it involves using electricity which is a separate prohibition; the question is, does it involve also the prohibition of cooking? R’ Moshe Feinstein (Igrot Moshe, Yoreh Deah III:52) says that according to Rashi’s reason, it does, since nowadays cooking by microwave is an ordinary way of cooking. But according to R’ Moshe diTrani’s reason, it doesn’t, since cooking by microwave was not done in the mishkan.
A similar question arises regarding heating water using solar power receptors. But R’ Binyamin Zilber (Resp. Az Nidb’ru I:34) raises the possibility that since nowadays they are used only to heat water for bathing, this is not regarded an ordinary way of cooking.
The Obligation to Testify
(based on Birur Halacha, Sanhedrin 37a)
Our Parsha says: “If he doesn’t tell, he will be punished for his sin”. Chazal learn from here that someone who knows the truth of a matter factually contested in court, must testify. The judges of the Bet Din tell the witnesses that they must testify, and the Mishnah (Sanhedrin 37a) details the arguments that the judges should use to convince the witnesses to testify and only say the truth. This is called “threatening” the witnesses. Some of the Rishonim hold that the judges should use exactly the Mishnah’s wording, but others leave this to the discretion of the judges.
Rashi explains that this “threatening” is done before the witnesses testify, in order to prevent false testimony. But the Rambam apparently holds that it’s done between the testimony and the cross-examination. Even at that stage, the “threatening” can be effective, since the witnesses can still recant then.
One of the arguments that the judges use is that every person should feel as if the whole world was created for him. R’ Menachem haMeiri explains that this will bring the witnesses to realize the importance of each person, and so they will be careful about the possible effect of their testimony on the defendant’s life.
The Giving of the Torah – on 6 Sivan or 7 Sivan?
(based on Birur Halacha, Shabbat 86)
In Shabbat 86, Tannaim disagree as to the amount of time semen can stay in a woman’s body and still be fertile, and hence, how many days after marital relations can a woman start counting her days of purity. The basis of the disagreement is what Moshe Rabbenu warned the Israelites before the giving of the Torah: “Be ready in three days; don’t approach your wives”. R’ Yose holds that the Torah was given on 7 Sivan, and the other sages hold that was 6 Sivan. Since the Shulkhan Arukh (Yoreh Deah 196:11) decides like R’ Yose regarding days of purity, Magen Avraham asks why we celebrate Shavuot on 6 Sivan?
He gives two answers: A: the decision regarding days of purity is only a Chumra. B: the Torah was supposed to have been given on 6 Sivan, but Moshe saw fit to add one day, and therefore it was given on 7 Sivan; and we celebrate the original date.
R’ Zeev ben Aryeh explains that before the Torah was given, the Israelites were considered Bnei Noach, for whom the day begins at sunrise. Therefore the Exodus was considered to have been on Nisan 14, and 50 days after that was 6 Sivan. But Moshe was of the opinion that the count to the giving of the Torah should be according to halacha, that is, that the day begins at sundown, so that the Exodus was 15 Nisan, and the Torah should be given on 7 Sivan. Now, since we count the Omer starting from nightfall, the 50th day is always 6 Sivan.
(based on Birur Halacha, Taanit 26b)
“Why is the chapter of the Kohanim’s blessing next to the chapter of the Nazir? To teach us: just like wine is prohibited for the Nazir, so it is for a Kohen performing the blessing” (Taanit 26b)
The Talmud rejects this drasha, because it would imply that even grape pits should be prohibited for the Kohen blessing like for a Nazir. Instead, the Talmud brings a different drasha: “To serve Him and to bless in His name” (Dvarim 10:9) – just like only intoxicating wine is prohibited for one serving in Bet haMikdash, so is it for a Kohen performing the blessing. The Talmud asks, that this drasha would imply that a Kohen with a blemish would be disqualified for the blessing like for serving in Bet haMikdash? The answer given is that the juxtaposition to Nazir teaches us that a Kohen with a blemish is not disqualified for the blessing (if it is concealed), just as a blemish does not disqualify a Nazir.
Why don’t we use the strict path, conversely, and learn from Nazir to prohibit grape pits, anfrom service in Bet haMikdash to disqualify blemishes? The Talmud answers: “Since this drasha is only a rabbinic asmakhta, we use the lenient path”. Some of the Rishonim deduce from this that the prohibition of wine for the Kohen blessing is only rabbinic. But others hold that it is a Torah prohibition, and they explain that what the Talmud says that the drasha is rabbinic refers only to the one from Nazir.
The Rif brings the drasha from Nazir even though the other drasha was brought later. Apparently he understands that both drashot are rabbinic, so it doesn’t matter which drasha is used.
“Holy Prayers can be said only in a Minyan of Ten”
(based on Birur Halacha, Brachot 21b)
The Talmud (Brachot 21b) learns fron the pasuk “Distance yourselves from within [mitoch] this group” (B’midbar 16:21) that Holy Prayers can be said only in a Quorum of ten, by a gzera shava, since that pasuk refers to the ten spies who slandered Eretz Yisrael, and regarding holy prayers the Torah says “I will be sanctified within [betoch] the children of Israel”.
What does the category of “Holy Prayers” include? R’ Saadyah Gaon says that this includes also the “Kedusha”s said before Shma and in “Uva letzion”. The Zohar also requires a minyan for them.
But the Rosh holds that those don’t need a minyan to be said, since they are only a description of what the angels say; only the Kedusha said in the Amidah needs a minyan, because we say there “nekadesh” – we will sanctify.
A third opinion, the Ran’s, is that the Kedusha before Shma needs a minyan, because there we actively sanctify Hashem’s name, but the Kedusha in Uva Letzion can be said solitarily because it’s only reciting of psukim – it includes the words of the psukim preceding the words actually said by the angels.
Because of the divergent opinions, the Shulkhan Aruch says that one davening without a minyan should read those Kedushas with the “taamim” (trop - musical notes), to show that he regards himself as only reading psukim, which does not ned a minyan. But the Rema says that the custom is to recite them normally.
The Prohibition on Continuing a Quarrel
(based on Birur Halacha, Sanhedrin 101a)
In Sanhedrin 101a there are two drashot from the pasuk “And there shall be none like Korach and his followers”: Rav derives from here a negative commandment, not to continue a quarrel like Korach did; Rav Ashi learns (from the end of this pasuk) that one who continues a quarrel is to be punished by leprosy.
The Smag and Rabenu Yonah, in Shaarei Tshuva, quote Rav, and understand that this is a genuine negative commandment d’oraita.
On the other hand, Rambam in his Book of Commandments accepts Rav Ashi’s opinion, saying that Rav’s drasha is an only an asmachta, and not a true Torah commandment, and therefore it cannot be counted among the 365 negative commandments. Margenita Tava explains that Rambam ruled according to the principle that in arguments between Amoraim, Halacha is like the later Amora, and Rav Ashi lived after Rav.
But Ramban says that rather Rav Ashi’s drasha is asmachta, and the simple meaning of the pasuk is a ordainment to plate the altar with the incense pans to commemorate the prohibition to dispute Aharon’s priesthood, hence this is a negative commandment d’oraita. But according to the Ramban the commandment does not apply to all quarrels, only to those against the priesthood. Similarly, R’ Eliezer of Metz (Yereim 357) says that the commandment regards disputing the priesthood or any other person honored by Hashem. Toafot Re’em explains that they hold that Rav meant all kinds of quarrels, but that’s only an asmachta, whereas the negative commandment d’oraita is limited as we saw.
R’ Yonatan of Lunel points out that the prohibition applies also to the righteous side, as we see from Moshe Rabenu who went to Datan and Aviram to try to silence the dispute, even though he was on the righteous side, and our sugya learns from there the prohibition to continue a quarrel.
“Give the people and their animals to drink”
(based on Birur Halacha, Brachot 40a)
The Gemara in Brachot 40a says that one is not allowed to eat before he gives food to his animal, as it says “I will give grass in your field for your animals” before it says “you will eat and be satiated”. If so, why does Hashem tell Moshe Rabbenu in the above pasuk to give the people to drink before their animals? A similar difficulty is why Rivka gave Eliezer to drink before his camels?
Sefer Chasidim answers both difficulties by saying that the animal comes first only regarding food, not drink. A few reasons are given for this distinction: First, a person drinks when he is thirsty, and it would cause him too much suffering if he would have to wait for his animal to drink. Secondly, if a person could start eating before his animal, he might have a long meal and forget his animal, but drinking doesn’t take a long time. Third, the pasuk that is the base of the prohibition mentions only eating.
Others hold that there is no difference between eating and drinking, and on the contrary, the animal’s suffering from thirst is greater than of hunger; and they answer these difficulties otherwise. Or haChayim explains that in the case of our pasuk there was a danger of death from thirst, and in such a case man comes before animals. Ktav Sofer explains that the prohibition applies only if the food or drink belongs to the animal’s owner, because a person has responsibility toward his animal, but if someone else supplies the food or drink, like Rivka who gave Eliezer, he should give the person to eat and drink before his animal.
Kriat Shma at bedtime
(based on Birur Halacha, Brachot 60b)
On the pasuk “He does not lie down till he eats prey”, Rashi explains that this refers to Kriat Shma at bedtime, which protects us from “mazikin” who might harm us.
The Gemara (brachot 60b) says that when one goes to bed, he should read the portion of Shma and recite the bracha of “Hamapil”. Accordingly, the Rif and the Rosh say that the correct order is Shma and afterwards Hamapil.
But the Rambam reverses the order - Hamapil and afterwards Shma. Hagahot Maimoniyot explains that the reason for this is that the Yerushalmi relates that R’ Zeira used to read Shma over and over again until he fell asleep, because one should fall asleep reading Shma. On the other hand, Eliyah Raba explains that the first opinion understands that R’ Zeira used to say the psukim of protection, which may be said after Hamapil.
Magen Avraham explains that this question is connected to the general question, what is the purpose of Kriat Shma at bedtime: Rabbenu Tam holds that the purpose is protecton from “mazikin”; accordingly, one can say Hamapil first, and Shma is not considered a “hefsek” (interruption) between the bracha and sleeping, since whatever comes for protection is not a hefsek. On the other hand, Rashi holds that the purpose of Kriat Shma at bedtime is so that one should fall asleep while saying words of Torah; accordingly, one can’t say Hamapil first, since Shma would be a “hefsek” (interruption) between the bracha and sleeping. Even according to this approach, one may say the psukim of protection after Hamapil, since whatever comes for protection is not a hefsek.
R’ Gdalyah Felder explains that this question is connected to the general question how to define the bracha of Hamapil: if it’s a specific bracha on the sleep of this particular person this particular night, one should not make a hefsek between the bracha and his sleep, so he has to say the bracha later. But if it’s a general bracha on the gift of sleep, through which Hashem enables us to rest, and it’s not related specifically to this night’s sleep, one can make a hefsek between Hamapil and sleeping, by saying Shma later.
Magen Avraham asks how Rema can say that if someone doesn’t fall asleep right away, he should repeat it again and again, while he agrees to the Shulchan Aruch that saying Shma is a hefsek and it should be said only before Hamapil? Eliyah Raba answers that the Rema doesn’t refer to repeating Shma, rather he means that one should repeat the psukim of protection, which aren’t considered a hefsek, as we saw.
One who lies with a non-Jewess – Zealots kill him
(based on Birur Halacha, Sanhedrin 82a)
The Mishnah (Sanherin 81b) states that one who lies with a non-Jewess – zealots kill him, and the Gemara connects this with Pinchas’ killing of Zimri.
Aruch haShulchan holds that this refers only to an idolatrous non-Jewess, as was in Zimri’s case. But the opinion of many Poskim is that it applies to any non-Jewess.
The Rambam says that the rule does not apply to a female “ger Toshav” (resident foreigner), because she took upon herself to keep the prohibition of idolatry, as the Maggid Mishneh explains.
Accordingly, the Maharik includes in the scope of this halacha even a Jewess who converted to idolatry. But the Maharikash dissents, because of the principle “A Jew stays a Jew even if he sins”. His opinion corresponds to the reason given by the Rambam for the severe penalty for this crime: the fact that any progeny from this union would be non-Jewish; and this reason does not apply for a Jewess who converted to idolatry.
What about a Jewess who lies with a non-Jew? The Re’em holds she too is punished by zealots. But the Ramban differs, because only a male who is active in the intercourse deseves such a severe penalty.
The Gemara says that if a zealot asks Bet Din if he should kill the sinners, they deter him. The Rosh infers from this that there is no mitzvah to kill them, only permission. But the Ran holds that it’s a mitzvah, only Bet Din does not tell anyone to carry it out, because the mitzvah is only for “zealots”, and the fact that someone asks shows that he isn’t a zealot.
This penalty can be carried out only during actual intercourse, and only if it’s done in public.
Twice the Pasuk and once the Targum
(based on Birur Halacha, Brachot 8a)
The pasuk “Atarot, Divon and Yaazer...” has no translation by Onkelos. Nevertheless, the Gemara (Brachot 8a) says that one should read the whole Parsha, twice the Pasuk and once the Targum, including this pasuk. Rashi explains that this pasuk should be read for the third time in the original. But Tosafot say that for this pasuk one should read the translation of “Targum Yerushalmi” (“Targum Yonatan ben Uziel”).
Tosafot prove their explanation from the fact that the Gemara did not give as an example the psukim at the beginning of Shmot, “Reuven, Shim’on, Levi, viY’hudah” etc., which also have no translation by Onkelos; that would seem preferable, since those psukim precede the pasuk “Atarot, Divon and Yaazer...”. According to Tosafot, it’s clear why the Gemara preferred to give “Atarot, Divon and Yaazer...” as the example - to teach us that for this pasuk one should read “Targum Yerushalmi”, and that cannot be said for the psukim “Reuven, Shim’on...” that don’t have even Targum Yerushalmi. Accordingly, the Rosh says that it suffices to read twice the psukim “Reuven, Shim’on...”.
The Taz rebuffs this proof by explaining that the Gemara preferred to teach that the pasuk “Atarot, Divon...” should be said three times even though the cities mentioned have no holiness, unlike “Reuven, Shim’on...” which refers to tzadikim.
The Shulchan Aruch cites an opinion that one can read Rashi’s commentary on the Torah instead of Onkelos’ translation. This seems strange in light of the fact that many psukim have no commentary by Rashi. This opinion can be understood only according to the Rosh who says that for a pasuk with no Onkelos, it suffices to read the pasuk twice.
Traits Necessary for Judges on the Sanhedrin
(based on Birur Halacha, Sanhedrin 17b)
“Find men who are wise and prudent, known to your tribes, and I will put them at your head” (1:13).
R’ Yochanan said (Sanhedrin 17a): “To be appointed to the Sanhedrin, one must be a man of stature and wisdom and appearance, of age, knowing witchcraft and seventy languages, in order that the Sanhedrin not require translators”. The Rambam rules accordingly, and adds other traits necessary for judges on the Sanhedrin: “To the Sanhedrin, the great one [of 71] or the smaller ones [of 23], are appointed only wise and prudent men, with wide Torah knowledge, of great scholarship, partially acquainted with other disciplines such as medicine, mathematics, astronomy, astrology, and the methods of soothsayers and sorcerers and witches and nonsense of idolatry, et cetera, so that they will know how to judge them.” R’ Yehuda haLevi writes similarly in the “Kuzari”, that the judges on the Sanhedrin have to know “all areas of knowledge totally”.
The Riaz comments on R’ Yochanan’s dictum: “We try to find people that have all these attributes, but if it’s impossible to find such people, the main thing is that they be wise, because without wisdom all the other attributes are worthless”. It would seem that the Rambam agrees with this, since regarding the traits mentioned by R’ Yochanan, he writes “We try to find people that have all these attributes”, meaning that they are optional, but he doesn’t mention wisdom there, because he mentioned wisdom in the aforementioned paragraph, among the attributes that are compulsory. R’ Yosef Karo proves that only the trait of wisdom is compulsory, from what our Parsha relates, that Moshe Rabbenu tried to find wise and prudent men (1:13), but found only wise men (1:15).
A student exiled to a city of refuge
(based on Birur Halacha, Makot 10a)
From the pasuk “He shall flee to one of these cities and live”, the Talmud learns that if a student is exiled to a city of refuge because of unintentional murder, the Rabbi who teaches him must go with him, so that he will be able to truly live by learning Torah. As the Rambam puts it, “Because for those who seek wisdom, life without learning - is like death”.
R’ Yonatan of Lunel says that this rule applies even if there already is a Rabbi in that city of refuge, because the student might not succeed in learning from a Rabbi he isn’t used to. Maharit proves this from the wording of the Talmud: “His Rabbi is exiled with him”, rather than “He is given a Rabbi there”.
Does this rule apply also if the Rabbi has other students? R’ Yaakov Reisher (Iyun Yaakov) holds that in such a case the Rabbi doesn’t have to go to exile, because it wouldn’t be fair for the other students to lose their Rabbi so that the one student could learn from him. But R’ Yaakov Etlinger (Aruch Laner) says that here too the Rabbi has to go to exile, even though the other students are harmed. Thus he explains what the Gemara learns from this halacha that a Rabbi should not teach an indecent student, such as this student whose sins brought him to kill unintentionally: the far-reaching negative results of teaching this student, even to the other students’ losing their Rabbi, shows how dangerous is teaching an indecent student.
R’ Etlinger can rebut R’ Reisher’s argument from the harm caused the other students, with the fact that if they desire so, they can go to exile with their Rabbi, and on the other hand, they aren’t compelled to go, so the harm is not so serious.
Is Zimun a Mitzvah from the Torah?
(based on Birur Halacha, Brachot 48b)
The gemara (Brachot 48b) learns from the pasuk in our parsha: “Where in the Torah is the source for grace after meals? ‘You will eat, be satisfied and bless’ - refers to the blessing of ‘hazan’; ‘your L-rd, Hashem’ - refers to the zimun”. The poskim differ on the question if zimun is from the Torah or d’rabanan. On the face of it, since it is learned from a pasuk, it’s from the Torah. That is the opinion of the Raavad.
But the Mabit holds that only zimun by ten people is from the Torah, since the above pasuk says ‘elokecha [your L-rd]’, and only when ten people make a zimun do they say “elokenu”. This distinction explains the fact that the gemara first derives “hazan” from the pasuk, and only after that derives zimun, contrary to the order of their recital - because only the later words “your L-rd” connotate zimun by ten. But in the Yerushalmi the order of the derivations is inverted: “‘You will eat, be satisfied and bless’ - refers to the zimun; ‘your L-rd, Has’ - refers to the blessing of ‘hazan’”, and so reads the Vilna Gaon in our gemara too; according to this reading, there is no basis for the Mabit’s distinction.
According to Rav Natronai Gaon, in all cases zimun is d’rabanan, and the pasuk is brought only as an asmachta, not as a true derivation.
The Rashba states that zimun is d’rabanan, and therefore is foregone in a case that it conflicts with human dignnity. But the Hazon Ish explains that the Rashba refers only to mentioning “elokenu” in a zimun of ten, and agrees that the zimun itself is from the Torah. He proves this from the rule that laborers are exempt from the blessing of “Hatov vehametiv” because it’s d’rabanan, but are obligated to do zimun. But he rebuts this proof, since zimun may be d’rabanan, and even so laborers aren’t exempt from it because it’s short and doesn’t cause them much work stoppage.
Conditions for Building the Beit Mikdash
(based on Birur Halacha, Sanhedrin 20b)
The Gemara (Sanhedrin 20b) learns from the pasuk in our parsha, “He will give you rest from your enemies... and the place that Hashem will choose...”, that the mitzvah is to first wipe out Amalek, and only then to build the Bet haMikdash. The Gemara proves this also from what is related about King David, that when Hashem gave him rest from his enemies, he suggested building the Bet haMikdash.
The N’tziv proves that we may build the Bet haMikdash even if only part of Amalek was wiped out, from the fact that King David suggested building the Bet haMikdash even though not all of Amalek was wiped out in his time. He proves this also from the wording of the above pasuk “He will give you rest from your enemies”, implying that “rest” suffices, and total eradication is not necessary.
Our sugya says: “Israel were given three mitzvot upon entering the Land: appointing a king, wiping out Amalek, and building the Bet haMikdash”. Does appointing a king also have to come before building the Bet haMikdash? Rashi’s wording implies that the order of the three mitzvot is unchangeable. That can be inferred also from what the Gemara proves from Shmot 17 that appointing a king has to come before wiping out Amalek. But it is possible that after the king has wiped out Amalek, the Bet haMikdash may be built without a king.
In fact, the Ramban says that Israel was punished for not having built the Bet haMikdash in the time of the Judges. But R’ Reuven Margaliot rebuts the proof from the Ramban, since the Judges may be considered kings regarding this matter.
It would seem that the fact that the second Bet haMikdash was built without a king proves that a king is not a necessary condition. But R’ Reuven Margaliot rebuts this proof, that at that time there was no need for a king since the holiness of the place remained from the first Bet haMikdash. R’ David Freidman explains that Zerubavel who participated in building the second Bet haMikdash was considered a king, since he was a descendant of David.
The King’s Torah Scrolls
(based on Birur Halacha, Sanhedrin 21b)
The Gemara in Sanhedrin 21b learns from the pasuk in our parsha “He shall write the Mishneh Torah”, that the king has to have two Torah scrolls, one of which he takes wherever he goes and is “hung on his arm”. The question arises, how can one hang on his arm a large, heavy Torah Scroll?
Rav Nachshon Gaon explains that indeed it wasn’t an actual Torah scroll, rather a page listing the Ten Commandments, which can be easily taken anywhere hung on the arm; and it is called a “Torah Scroll” because the Ten Commandments have 613 letters, corresponding to the 613 Mitzvot in the Torah. Rashash proves this explanation: if it was an actual Torah scroll, he wouldn’t be allowed to hang it on his arm, since it’s prohibited to hang a Torah scroll (Brachot 24a).
On the other hand, the Meiri holds that it was a whole Torah scroll, but it was small enough to be hung on the arm. Maharshal explains accordingly the argument between R’ Yose and R’ Shimon ben Elazar in the braita in our sugya, R’ Yose learning from “Mishneh Torah” that the font of the Torah changed (shinui) in the time of Ezra, and R’ Shimon ben Elazar learning from there that the king has two Torah scrolls, one hung on his arm: R’ Shimon ben Elazar also understands “Mishneh” as meaning difference of the font - the letters were smaller so he could hang it on his arm.
The Rambam omits the halacha that the second Torah scroll is hung on the arm. This may be because he holds like R’ Yose, who (according to Maharshal) agrees that the king had two Torah scrolls, but holds that both were of regular size, and not hung on his arm. Radbaz explains that because of the aforementioned question, how can a Torah scroll be hung on the arm, the Rambam understood that it wasn’t meant literally, rather the intention is that the Torah scroll is as if it’s hung on his arm, since it’s always with him.
The Lender Acquires the Pawn
(based on Birur Halacha, Bava Metzia 82a)
Our parsha says, that when a lender returns the pawn to the debtor at day or at night, when he needs it, “It will considered for you as Tzedaka”. The Gemara (B”M 82a) learns from here that the lender acquires the pawn, and that’s why returning it is considered as his giving Tzedaka.
Rashi holds that since the lender owns the pawn, and is not only a bailee (shomer), even if it is damaged by force majeure (oness), he has to reimburse the debtor. But the Rif says that the lender is not liable for oness, because he understands the term “acquires the pawn” not literally, rather meaning that he has rights in the pawn, but since he is not allowed to use it, he is unlike a borrower who is liable for oness. He is liable only for theft and loss as a paid bailee (shomer sachar), because he benefits from those rights he has in the pawn.
R’ Yeshayah di’Trani proves Rashi’s opinion from the rule (Kidushin 8b) that a lender can betroth a woman with a pawn, and that is because it is considered his property entirely. But the Rif would explain that the rights he has in the pawn are enough for betrothal.
Ramban proves the Rif’s opinion from the Mishnah (B.M. 80b) that says that a lender is considered a paid bailee over the pawn, while the Gemara bases this on the rule that the lender acquires the pawn. Rashi can rebut this by explaining that the Mishnah involves a pawn given at the time of the loan, while the rule that the lender acquires the pawn applies only to a pawn given after the loan, which is given to serve as possible payment.
The distinction between a pawn given at the time of the loan and one given after the loan is made in our sugya. But other sugyot apply the rule that the lender acquires the pawn even to one given at the time of the loan: Gitin (37a), regarding the rule that if a lender has a pawn, his loan is not forfeited in the Shmita year; Kidushin (8b), regarding the ability to betroth a woman with a pawn; and Pesachim (31a), regarding a lender who has a pawn of chametz, who is not allowed to keep it on Pesach. Indeed, because of those sugyot, Ri Migash holds that the lender acquires even a pawn given at the time of the loan, and he explains that our sugya mentions the distinction only as a possibility. On the other hand, Tosafot say that the lender acquires only a pawn given after the time of the loan, but since he has total ownership in that case, he has partial rights also in one given at the time of the loan, and this suffices regarding Shmitta, betrothing a woman and chametz.
The Psukim Read During Flogging
(based on Birur Halacha, Makkot 22b)
The Mishnah (Makkot 22b) states that while administering the stripes (malkot), the head judge reads psukim from our parsha: “If you don’t take care to do...” (28:58), “Hashem will strike you excessively...” (28:59), and returns to the beginning, and then reads “Keep the terms of this covenant...” (29:8) and the pasuk from Tehilim “He the merciful will forgive the sin”.
The words “returns to the beginning” seem to mean that the first two psukim are read over and over. But if so, when are the other psukim read? Indeed, Tiferet Yisrael writes that these words are a copier’s mistake. R’ Yaakov Etlinger suggests that the meaning is that the judge reads these psukim only one more time, and afterwards goes on to the other psukim. He gives another explanation: the last three psukim were chosen since each has 13 words, and the 39 stripes are made up of three groups of 13, so one pasuk is read for each group (and the first pasuk, “If you don’t take care”, is read before the flogging as a declaration to explain the reason for it); and if the judge finishes reading a pasuk before the corresponding group of stripes was finished, he read that pasuk again.
But in the version of the Mishnah printed with the Jerusalem Talmud, the psukim “Keep the terms” and “He the merciful” are omitted. According to this version, the meaning is that the judge reads the other two psukim over and over, until the flogging is done. This is also the Rambam’s ruling.
All the above refers to d’oraita flogging. After the Sanhedrin was closed and courts had no authority to administer d’oraita flogging, the Jewish communities adopted a custom of flogging in certain cases. R’ Shrira Gaon writes that before this type of flogging, the judge reads psukim related to the sin committed; during the first 13 stripes he reads “If you don’t take care...”; during the next 13 - “If the sinner is flogged...” (Dvarim 25:2); and during the last 13, “Keep the terms...”. Rama says that during the flogging that was customary on the eve of Yom Kippur, “He the merciful” is read three times.
Deciding Halacha by Prophecy or Bat Kol
(based on Birur Halacha, Bava Metzia 59b)
When there was a dispute between R' Eliezer and the Sages (Bava Metzia 59b), and a Bat Kol from heaven declared that the Halacha is always as R' Eliezer says, R' Yehoshua brought the pasuk in our parsha "It is not in heaven", to show that a Bat Kol is not to be relied upon.
On the other hand, in Yevamot (14a) the gemara states that the rule that Halacha is like Bet Hillel against Bet Shammai is based on a Bat Kol.
Tosafot give two explanations to reconcile the sources: A) In the case of R' Eliezer it was clear that the Halacha was like the Sages since they were the majority, and a Bat Kol cannot overcome a clear Halachic rule; whereas in the case of Bet Hillel, it wasn't clear if Halacha is like Bet Hillel since they were the majority, or like Bet Shammai since they were more sagacious, and a Bat Kol is decisive where the halacha is unclear. B) In the case of R' Eliezer the Bat Kol came out only to honor him, after he requested "Let heaven prove me right", and not as a true decision, and therefore it is not to be reckoned with.
R' Nissim Gaon explained that in the case of R' Eliezer the Bat Kol was disregarded since it was worded generally: "Halacha is always like R' Eliezer", which could be construed to mean that Halacha is always like him except here. This can explain why the Bat Kol in the case of Bet Hillel is decisive: because it had exact wording.
The Rambam brings the pasuk "It is not in heaven", to show that a prophet cannot add or omit a mitzvah, nor interpret a mitzvah in a manner not delivered by Moshe Rabbenu. Ma'ase Rekach explains that the Rambam agrees with the first opinion in Tosafot, that where Halacha is unsettled, a Bat Kol or prophecy can be used to settle the halacha, since this does not contradict anything in the Torah. But Pri Chadash holds that in the Rambam's view, in no case can prophecy decide Halacha, and the reason for the rule that halacha is like Bet Hillel isn't because of the Bat Kol, rather because they were the majority, and the Bat Kol came only to honor them.