Parashat Shavua

Hemdat Yamim Parashat Ki Teitzei 5763

Hemdat Yamim Parshat Ki Teitzei 9 Elul 5763 ******************************************* This edition of Hemdat Yamim is dedicated to the memory of R' Meir ben Yechezkel Shraga Brachfeld o.b.m. *********************************************************************** Eretz Hemdah is the premier institution for training young rabbis to take the Israeli Rabbinate's rigorous Yadin Yadin examinations. Eretz Hemdah, with its distinctive blend of Religious Zionist philosophy and scholarship combined with community service, ensures that its graduates emerge with the finest training, the noblest motivations resulting in an exceptionally strong connection to Jewish communities worldwide. *************************************************************************************************************************** One's House is his Fortress The Torah writes: "When you build a new house, you shall make a fence for your roof, and you shall not place blood in your house, should the one who falls fall from it" (Devarim 22:8). What does the fence accomplish? Will it really save someone, or will its absence really cause someone's death if it is Divinely decreed that he should either live or die? This dilemma is actually one of the applications of a major, theological question. To what extent is one's fate affected by natural acts of precaution and to what extent it is determined only by direct Divine Providence? (See Rashi, ad loc. & Sefer Hachinuch #545). But whatever approach we take on that important issue, the Torah seems to put a lot of stress in this mitzva on the house. "When you build a new house." Halachically, it doesn't have to be new (Shulchan Aruch, Choshen Mishpat 427:1)!? "You shall not place blood in your house." Why not write that one should not be responsible for another's death? "Should the one who falls fall from it." Obviously we are talking about falling from it? Why not mention what will happen to him if he falls? It is likely that the Torah is stressing that the point of making a fence for the roof is more than a precautionary step to prevent tragedy. Rather, building the fence helps define the house. When one builds the fence, the house is as if new, even if it has been standing for decades. It is a house that transmits outwards that life has value and must be safeguarded. It is the potential for falling off, as much as any eventuality, Heaven forbid, which makes a house lacking precautions "a bloody house." In this way, the fence and any other elements of safety that exist in the house are parallels to the mezuzah. The mezuzah is a sign that the house must protect those within from spiritual dangers, trying to ensure that all that enters the doorway conforms to the basic truths of our religious foundations. So too, the fence exhibits a concern for the physical welfare of those who live in the house or come to visit there. The two concerns must go hand in hand. The spiritual concern is not sufficient if one does not have a healthy respect for the gift of life. But the world's strongest and safest fortress is not of true value if it does not allow one who is safeguarded in it to live his life in a significant manner. Editor's note- L'ilui nishmat my dear talmid, Yehuda Shlomo ben Chayim Dov Schwarz, zichrono livracha, who fell tragically early from this world, but only after climbing to spiritual heights. ____________________________________________________________________________________ P'ninat Mishpat : The Issuing of an Order of Separation (from Piskei Din Rabbani'im, vol. XII, pp. 161-163) Case: A couple presented the regional court with a divorce agreement, in which it was agreed that after divorce, the joint apartment would remain in the wife's possession. Subsequently, the husband decided to back out of the agreement, and the matter was in the process of adjudication in the regional court. In the meantime, the court ordered a tzav hafrada (a court order that forces the husband to stay away from the place of their joint residence to date) until the end of the proceedings. The Court of Appeals heard the husband's claim that beit din did not have the authority to give such an order, as that was not within the subject matter of the court case. Ruling: We have decided to hear this appeal, even though it seems to be on a temporary matter, because of the potentially severe consequences of a tzav hafrada. Firstly, it may compromise the outcome of the question of continued marriage, a matter that has not yet been determined. Secondly, it forces a man into a situation where he may not have any reasonable living arrangements on short notice, and this predicament will not be remedied to make up for his expenses and hardships if it is determined that his wife's claims were not valid. That being said, after studying the matter at hand, we have decided to reject the appeal for the following reasons. The tzav hafrada was not made to prejudice the outcome of the decision on control of the apartment. Rather, beit din gave the order based on its feeling that continued joint residence is likely to be detrimental to the wife. This is certainly within the jurisdiction of the court, which was called upon to rule on the continued marriage of the couple or the giving of a get. In general, beit din is hesitant to grant a tzav hafrada, because it is unclear how matters will progress, from the perspective of the beginning of the proceedings. It is also a major, and not always justified burden to put on the husband to find alternative living quarters without sufficient notice. However, this case is different. The couple had already produced a divorce agreement, which included the husband's agreement to leaving the apartment, even mentioning a date for his departure. It is, therefore, reasonable to assume that the husband contemplated and planned to make arrangements by that time. It is, thus, fully reasonable that beit din acquiesce to the wife's request for a tzav hafrada. This is not to say, though, that the regional beit din needs to turn the temporary tzav hafrada into a permanent one. That needs to be determined after they hear the claims of both sides and render a final ruling. _____________________________________________________________________________________ Moreshet Shaul (from the works of Hagaon Harav Shaul Yisraeli zt"l) Kilayim - VI- What Species are Included in the Prohibition of Mixed Sowing? Part II (from Eretz Hemdah II, 1:7) The Rambam (Kilayim 1:4) says that the prohibition on sowing seeds of different species (kilei zeraim) applies only to plants that are for edible food, as opposed to bitter grasses. However, the Kesef Mishneh (ad loc.) asks from the mishna (Kilayim 5:8) that the only criterion is that they are the type of vegetation that one is usually interested in keeping. He also cited a Yerushalmi that the laws of kilayim apply to zunin (a certain species) because they are eaten by birds. The Kesef Mishneh, therefore, interprets the Rambam to apply to all species that one is interested in keeping, with edible ones just being the most common example. According to the Kesef Mishneh, it does not appear that the species must be edible even to animals (based on his first question). The Radvaz (Kilayim 2:9) understands the Rambam according to his simple reading, that the species must be edible for humans. The Levush takes the middle approach, stating that the species must be edible, but it is sufficient for it to be edible for animals. How does the Radvaz explain the Yerushalmi that zunin have kilayim because they are eaten by birds? The P'nei Moshe answers that zunin are subject to the laws of kilayim because they belong to the same family as wheat, which is, of course, edible. However, this is very difficult to accept, as the Yerushalmi mentions only the factor of being edible for birds. One can, perhaps, reconcile the Radvaz if we assume that there are two factors that must be met in order for the laws of kilayim to apply. The first requirement is that species must be fit for human consumption. If not, the field in which they grow is not categorized as "sadcha." The second requirement is that people must make an effort to sustain such plants in order for them to be considered "zera." Regarding the requirement of being edible, it may be sufficient for the species to be even minimally edible, as seems to be indicated by the mishna (Kilayim 2:5). The Radvaz may understand that zunin are minimally edible for man. However, people will not make efforts to grow or sustain such a plant for human consumption except under bizarre circumstances. In order to meet the second requirement, it needs to have a practical value. For that reason the Yerushalmi stresses that zunin are useful to feed to birds. The Tiferet Shmuel reconciles the Rambam, answering the Kesef Mishaneh's questions on his simple reading, by saying that in order to have a Torah prohibition, the species needs to be edible for humans, whereas rabbinically, it is sufficient to be edible for animals. The Yerushalmi is, then, talking on the rabbinic level. (This approach is difficult to insert into the Rambam's wording.) On a practical level, one should accept the Kesef Mishneh's strict ruling, out of fear of a Torah prohibition. However, one should realize that this entire discussion is pertinent only when but one of the mixed seeds is not humanly edible. However, when both are inedible, then the prohibition does not apply because the species are considered of the same category, that of non-edible seeds. We have precedent for this distinction in the halacha that one may graft the branch of one non fruit-bearing tree onto another (Chazon Ish, Kilayim 1:12). ________________________________________________________________________________ Ask the Rabbi Question: How full does a guard railing on a staircase have to be? How big are the gaps allowed to be? Does it matter if, technically, a baby might be able to fall through? Answer: This question is hard to answer in detail, but understanding the concept should give you a pretty good idea how to approach the matter. The Torah writes: "When you build a new house, you shall make a fence for your roof, and you shall not place blood in your house, should the one who falls fall from it" (Devarim 22:8). Although the pasuk mentions just a roof, Chazal (Sifrei, ad loc.) extended the law of fences to a variety of dangerous places (like, a pit) in one's property. You refer to a guard railing for a staircase, which can be a dangerous place, especially for small children. If the halacha applies to all places a person can fall, then why is the roof singled out? There are a few basic approaches one can take to the question. The Sefer Hachinuch (# 546) says that the Torah just mentioned a common example of a place that requires a fence. However, there is another, not necessarily contradictory approach found in several acharonim, which seems logically appealing, according to classical halachic analysis. That is that there are what some of us like to call, "tzvei dinim," two elements to the halacha. The requirement of a fence for a roof is quite technical and across-the-board. The requirement elsewhere is more subjective and based on the specifics of the situation. This distinction makes the roof stricter, but, at times, more lenient than other places. For example, a house that doesn't meet a house's size requirements is exempt from having a fence even if the roof is used in the same manner as other roofs. Additionally, the minimum height of the fence is ten tefachim (roughly, three feet), hardly enough to totally prevent someone from falling. Rather, this height is the classic one for a halachic wall in a variety of contexts, from a sukka to the laws of eiruv and more. Thus, it is likely that the maximum space in between vertical bars of the fence for a roof should be three tefachim, as we find by other halachic walls. That is in regard to the more formalistic and defined application of these halachot. HachinucHBut by extending the concept to a wide range of dangers (including raising a "bad" dog- see Bava Kamma 15b), Chazal were telling us that, beyond the formalistic element of the mitzva, the spirit of the law is binding as well. Thus, where there is palpable danger, further steps may need to be taken. This requirement is not learned out from the positive commandment to "build a fence," but from the negative commandment not to "place blood in your house" and the more general commandment, "be careful and safeguard your life" (Shulchan Aruch, Choshen Mishpat 427:8). One difference stemming from the distinction between the more defined and less defined applications of the halacha is that even those who require a beracha when building a fence (Rambam 11: 12) do so only on the fence of a roof (Ha'amek She'ala 145:17; Chayei Adam 15:24). Another is that one has to determine whether a potentially dangerous area, other than a roof, is actually used (Minchat Yitzchak VII, 122), in contrast to the normal law that it a straight roof needs a fence as long as it can, in theory, be used (Aruch Hashulchan, CM 427:5). So, in your case, one has to consider what the actual dangers are. If there is reasonable danger for children, then you have to ask an expert what the maximum width between bars should be. While halacha does not expect one to spend all of his money removing the most remote danger, it is, in general, better to err on the side of caution. Harav Shaul Israeli zt"l Founder and President Deans: Harav Yosef Carmel Harav Moshe Ehrenreich ERETZ HEMDAH 5 Ha-Mem Gimmel St. P.O.B 36236 Jerusalem 91360 Tel/Fax: 972-2-5371485 Email: eretzhem@netvision.net.il web-site: www.eretzhemdah.org American Friends of Eretz Hemdah Institutions c/o Olympian 8 South Michigan Ave. Suite 605 Chicago, IL 60603 USA Our Taxpayer ID#: 36-4265359

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