CHAMISHOH MI YODEI'A - FIVE QUESTIONS ON THE WEEKLY SEDRAH - PARSHAS KI
SEITZEI 5766 - BS"D
1) Ch. 21, v. 18: "V'lo YISHMA A'Leihem" - Why do we judge the ben soreir
u'moreh "al sheim sofo," - for that to which his acts will eventually lead, i.e.
murder (mishnoh Sanhedrin 71b), even though he has not yet murdered anyone,
and yet by Yishmo'eil we find that Hashem saved his life by miraculously
producing a wellspring in the desert (Breishis 21:19) even though his progeny would
eventually cause some of the bnei Yisroel to die from thirst, because of the
dictum that we judge a person by the situation at hand and not by considerations
of what the future holds, "ba'asher hu shom" (Breishis 21:17), as per the
gemara R.H. 16b?
2) Ch. 21, v. 23: "Ki kil'las Elokim toluy" - Because a curse/cheapening of
G-d is hanging - Exactly what is the negative result of leaving the body of the
guilty person hanging?
3) Ch. 22, v. 19: "V'onshu oso mei'oh kesef v'nosnu la'avi hanaaroh" - The
words "v'nosnu la'avi hanaaroh" seem to clearly indicate that the father is the
recipient of the 100 kesef fine. Since the husband maligned his wife,
shouldn't she deserve the payment?
4) Ch. 22, v. 22: "U'meisu gam shneihem" - The gemara Eruvin 7a derives from
the extra word "gam" that if a women is to be given the death penalty while
she is pregnant, and with waiting until after the birth we can allow for her
baby to be born, and then afterwards give her the death penalty, we don't wait,
but instead carry out the execution immediately. Why don't we derive this
ruling from the story of Tomor, Breishis 38:24?
5) 5) Ch. 22, v. 23: "Umtzo'oh ish bo'ir" - And a man happened upon her in
the city - The Torah differentiates between this case of a man having relations
with a betrothed woman in the city, where they are both guilty of adultery,
and when this takes place in the field, away from the public domain, where only
he is guilty (verses 25-27). The Torah explains that in the situation that
took place in the city it is obvious that the woman was not forced, as she did
not scream (verse 24).
This is most puzzling, as the Torah differentiates between the cases and says
that in the former both are put to death, while in the latter only the man is
put to death, because we assume that the girl was forced. Since the death
penalty is only administered when the sinner is warned and responds that he/she
is aware of the consequences and is willingly going ahead with the act, how can
there be a difference by virtue of location? In both cases the girl must have
been warned or she would not be put to death regardless of location.
Answer to questions on parshas Shoftim:
1) Ch. 17, v. 6: "Al pi shnayim eidim o shloshoh eidim yumas ha'meis lo yumas
al pi eid echod" - By the testimony of two witnesses or three witnesses shall
the guilty person be put to death he shall not be put to death by the
testimony of one witness - a) Since we know that one witness is insufficient even for
money matters (Dvorim 19:15), why does our verse repeat this by capital
punishment? b) If two are believed here, why bother telling us that three are also
a) The Chizkuni says that without our verse we might believe that one
witness is believed when it comes to matters of life and death, as the seriousness
of the punishment is a deterrent to lying. Therefore our verse tells us that
even by life judgments one witness is not believed. b) 1) The mishnoh in the
first chapter of Makos says that this teaches us that just as when two witnesses
are found "zom'mim," they are both reciprocally punished, so too with three,
they are all punished, and we don't say that the third witness is extra
baggage, as two are sufficient, and not punished. Also, just as when one of two is
disqualified, their testimony is useless, the same with three, even though two
2) Haksav V'hakaboloh says that it is necessary for our verse to tell us
that three witnesses are believed regarding rulings that carry the death penalty.
If not for our verse we might think that when three witnesses testify that a
sin that carries the death penalty has been perpetrated in front of all three
of them it is logical to assume that it just cannot be, as one would never
commit such a severe sin in front of three people (three are a crowd). It is
therefore necessary to tell us that EVEN three are believed.
2) Ch. 17, v. 7: "Yad ho'eidim ti'h'yeh bo borishonoh l'hamiso" - The
witnesses who testify to the guilt of someone who has transgressed a sin that
deserving of the death penalty are the ones who execute the sinner. What is the
rationale for this ruling?
Possibly, the Torah specifically wants the witnesses to carry out the
1) The witnesses have a weakened resolve regarding the sin that they have
witnessed. We see this concept in the gemara Brochos 63a and Nozir 2a, "Horo'eh
sotoh b'kilkuloh, yazir atzmo min haya'yin." When one witnesses a sinner
brazenly transgressing, moments after he was warned against doing so, the
onlooker's resolve must surely be weakened. Therefore, the Torah says that the
witnesses carry out the execution, as by actively carrying out the punishment, their
resolve to not transgress that sin is strengthened.
2) There is a fear that if someone wanted to have a person killed, but
wasn't sufficiently corrupt to actually commit murder, he might decide to testify
falsely that the person transgressed a sin that carries the death penalty. He
has only testified, and not lifted a finger to kill the person. The Torah says
that if the court concludes that the person is guilty, the witnesses must
carry out the execution, thus preventing this scenario.
3) Ch. 19, v. 19: "Va'asisem Lo Ka'asher Zomam La'asos" - The gemara Makos 2a
derives from our verse that the Torah requires that the witnesses give
sufficiently specific testimony which could make them liable to be refuted by other
witnesses who could say that the first ones are false by virtue of not having
been at the location where they claim the situation took place at the time
they testified it took place, commonly called "imonu heh'yi'sem." If witnesses
don't open themselves up to this risk, they are invalid.
It seems that this ruling makes it impossible to ever have acceptable
witnesses. If the first set of witnesses requires the possibility of being refuted by
the second, then the second can only be accepted if it can be refuted by the
third set, and so on. Eventually we will run out of people, so then the last
set will be invalid. This will create a reverse domino effect as the ones
before them will likewise be invalid, all the way back to the first witnesses. How
can we ever have acceptable witnesses?
This question is raised by the Sfas Emes.
1) A simple answer is that we do not require "yochol l'hazimo" to such a
great extent, as this would defeat the possibility of having acceptable
witnesses, as above. It is sufficient to have a number (how many I don't know) of pairs
who can create hazomo and hazomo on hazomo. 2) There is no lack of "yochol
l'hazimo" if there is an outside factor stopping it. Only if within the
testimony there is insufficient clarity to be able to be "mahzim" the witnesses, then
they are disqualified. If all seven "chakiros" are accurately answered the
witnesses are fully "yochol l'hazimom."
I was given an answer that the previous witnesses could be recycled and could
testify regarding others further down the chain. This is not satisfactory,
either because they are at the moment of their testimony invalid, "posul," or
testifying about a pair of witnesses, that if made kosher would render
themselves not kosher. Then they cannot be "meisim atzmo rosho" (Y'vomos 25b, Sanhedrin
9b), self incriminate.
4) Ch. 19, v. 19: "Kaasher zomam LAASOSE" - The mishnoh Makos 5a derives from
the word LA'ASOSE "v'lo kaasher ossoh," that only when the sentence has not
been executed and the witnesses are found to be false in a manner called
"hazomoh," that others testify that the earlier witnesses were not present at the
time and location which they claimed they saw the act done, do we carry out
reciprocal punishment. However, if the sentence was irrevocably carried out, the
false witnesses are not punished.
This obviously deserves an explanation. If they are punished when nothing was
actually done to the falsely convicted person, surely when the sentence was
carried out, and they have brought about actual damage to an innocent person
(lashes, death, etc.), they surely deserve to be punished.
Rabbi Ovadioh of Bartenura gives three answers to this and the Baalei Tosfos
1) So as not to weaken the stature of the judges. Once a punishment is
carried out and the false witnesses are also punished this publicizes the mistake
of the judges. People would afterwards not go to the trouble of traveling to a
court, saying that the judges often rule inaccurately.
2) If punishment would be carried out even after the falsely convicted
person was punished, then there is a fear that his relatives would hire false
witnesses to contradict those witnesses as an act of revenge. This could create an
endless string of false witnesses and punishments.
3) In T'hilim 82:1 it says, "Elokim nitzov ba'adas Keil b'kerev elohim
yishpote." This verse tells us that Hashem is actively involved in the judgements
of our courts. Since Hashem allowed the verdict of the court to actually be
carried out, although the defendant was innocent of the crime in this case, no
doubt, he was guilty of something else which also deserved this punishment.
Therefore, after the punishment has been carried out we do not reciprocally punish
the false witnesses.
4) If the court has only come to a guilty verdict but not carried it out,
the false witnesses have not caused irreparable damage. They therefore are
worthy of atonement by reciprocal punishment. Once their testimony has brought
about irreparable punishment to the innocent defendant, they have sinned so
greatly that they cannot receive atonement through the court system.
From this last explanation we see the awesome responsibility one has for the
ripple effects of one's actions. The defendant being found guilty was caused
by the false testimony of the witnesses, and they still merit having their sin
exonerated by the earthly court. Once the punishment is executed they no
longer merit this. The carrying out of the punishment wasn't done by the witnesses,
but rather by the court itself, and yet through the effect of their words
that an action was carried out, they no longer merit to have their sin forgiven
through court action.
There is one exception to the court's carrying out the punishment through its
own law enforcement staff. This is the death penalty. The witnesses
themselves must carry out the death penalty, as stated earlier in our parsha, "Yad
ho'eidim ti'h'yeh bo borishonoh l'hamiso" (17,7). The Torah puts into place
numerous safety measures to avoid hastily carrying out the death penalty. This
exception can be explained as follows: There is a fear that if someone wanted to
have a person killed, but wasn't sufficiently corrupt to actually commit murder,
he might decide to testify falsely that the person transgressed a sin that
carries the death penalty. He has only testified verbally, and not lifted a
finger to kill the person. The Torah says that if the court concludes that the
person is guilty, the witnesses must carry out the execution, thus preventing
Possibly the rule of "kaasher zomam, v'lo kaasher ossoh" is also a powerful
tool in keeping the witnesses on the straight and narrow. Being aware that once
their false testimony has been accepted and acted upon, they will no longer
be punished by an earthly court because their sin is so great that it can only
be punished and rectified by the celestial court, they become keenly aware of
the enormity of the sin of false testimony. We now have a 5th answer.
5) Ch. 20, v. 20: "Rok ho'eitz asher TEIDA" - When we have a doubt if a Torah
prohibition applies, we apply the dictum "sofeik d'Oreisoh l'chumroh," when
in doubt regarding a Torah-level law, we are stringent. However, there is a
disagreement between the Rambam and the Rashboh if acting stringently is required
by Torah law or if by Torah law one may be lenient, and it is only a
Rabbinical decree to be stringent. According to the opinion that "sofeik d'Oreisoh
m'd'Oreisoh l'kuloh," that by Torah law one may be lenient, why does the Torah
say that only a tree which YOU KNOW is not a fruit producing tree may be cut
down? Even when one has a doubt if it produces fruit, he would also be permitted
to do so by Torah law.
1) An answer heard in the name of Rabbi Chaim haLevi Soloveitchik that the
prohibition of "bal tash'chis," needless wasting, is not limited to the actual
object itself, but also to its value. Let us say that the value of the tree
which is in doubt would be $100 if it were definitely not a fruit producing
tree, and good for lumber only. If it would definitely be a fruit-producing tree,
let us say it would be worth $200. Since there is a doubt as to which type of
tree this is, it would be fair to say that for the 50/50 chance involved, its
fair market value would be right in the middle, at $150. However, if one were
to fell this tree, it would not be capable of producing fruit and would have
the lesser value. Hence, felling a tree which is doubtful if it is a
fruit-producing tree is not a doubt in value. It definitely loses value as a cut tree,
so if a "sofeik" fruit tree is felled it brings a definite loss of value.
Therefore the Torah only permits felling a tree that is SURELY NOT a fruit tree.
This is quite a "chiddush" and has only been verbally transmitted in the name of
the Gra"Ch haLevi.
2) The Sforno gives a most novel interpretation of our verse. He says that
we are speaking about a tree that is definitely known to you as a fruit tree.
However, this tree might be dead or so diseased that it is impossible for it to
produce fruit anymore. In such a circumstance the Torah says,"Rok ho'eitz
asher TEIDA ki lo eitz maachol hu oso sash'chis," - only a tree that you KNOW is
not a food producing tree, because it is dead or dying, may you destroy. This
is most puzzling. Why does the Sforno not simply learn that the verse is
discussing a situation where you have a tree that you do not know is a fruit tree
or a non-fruit tree, rather than his seemingly convoluted explanation?
Perhaps this difficulty on the opinion that "sofeik d'Oreisoh m'd'Oreisoh
l'kuloh" is what prompted the Sforno to explain the verse in the manner that he
did. Once we have a tree that definitely is a fruit tree species, we must
always assume that it is a fruit producing tree, "chazokoh d'mei'ikoro," until we
definitely know otherwise, because of the ruling that something does not change
its status because of a doubt, and only changes its status if we are sure
there is a change, "vadai nishta'neh." (Nirreh li)
A GUTTEN SHABBOS KODESH. FEEL FREE TO DISTRIBUTE BY COPY OR ELECTRONICALLY.
FEEDBACK IS APPRECIATED. TO SUBSCRIBE, KINDLY SEND REQUEST TO: SHOLOM613@AOL.COM
See also Sedrah Selections, Oroh
V'Simchoh - Meshech Chochmoh on the Weekly Parsha and Chasidic Insights