The mishnah at the end of Orlah makes an unequivocal statement about chadash (grain from the new harvest, which may not be eaten until the omer offering is brought on the sixteenth of Nissan). According to this mishnah, “Chadash is biblically forbidden everywhere.” This means it is an issue not only in Israel, but in the Diaspora as well. The rule is derived from the verse: “Until that very day, until you have brought the offering of your G-d, you shall eat no bread or parched grain or fresh ears; it is a law for all time throughout the ages in all your settlements” (Vayikra 23:14). Clearly, this last phrase includes the Diaspora. Even though chadash applies in the Diaspora according to this mishnah, the omer offering may not be brought from grain grown in the Diaspora (as the mishnah states in Menachot and as the Rambam rules). This mitzva is more difficult to follow in the Diaspora, since wheat there sprouts before the sixteenth of Nissan, and might be made into flour (which is not the case in Israel). Some rabbinic leaders in the Diaspora used to roam from place to place with their own pots and pans, looking for wheat that was not chadash. However, the mishnah in Kiddushin presents, in addition to the view cited above, a lenient view that biblically the law of chadash pertains only to the Land of Israel. According to this view, the mitzva of chadash is similar to to the offering of the omer, in that both are relevant only in the Land of Israel. Thus, we see that in Kiddushin the status of chadash in the Diaspora is disputed. One would expect that we would follow the explicit ruling in Orlah, where only one view is recorded: that chadash is forbidden everywhere. But it is not that simple. Which mishnah to follow may depend upon which tractate was written first. If the mishnah in Orlah is later than the mishnah in Kiddushin, then it seems there was a disagreement followed by an unopposed statement, so we should follow the unopposed statement. (Hence chadash would be prohibited even in the Diaspora.) However, if Orlah is earlier, then it seems the disagreement continued afterwards in Kiddushin despite categoric statement in Orlah. We might assume that Orlah must beearlier. After all, it is part of Seder Zera’im (the first of the six orders of the Mishnah), while Kiddushin is part of Seder Nashim (the third order). But it is not that simple. There is a general principle that “The Mishnah is not in order.” This means that the order of the Mishnah’s tractates is logical, not chronological. It does not necessarily correspond to the time periods in which they were originally taught.

On the day following Yom Tov (Isru Chag), we do not recite Tachanun (a penitential prayer recited on all non-festive days). In fact, the custom is not to recite it during the entire month of Nissan. During the same time, we also omit eulogies and Tziduk Ha-din. (Tziduk Ha-din is a prayer which affirms G-d’s justice and righteousness, and is recited after a death, usually at the funeral.) Nevertheless, the Encyclopedia Talmudit cites the observation of the Shibolei HaLeket that for mourners on Isru Chag “The custom is to recite Tziduk Ha-din together (be-yachad). The normal way would be more like a eulogy (and thus prohibited).” This makes it clear that there are two styles of reciting Tziduk Ha-din at a funeral – either one person reads the words and everyone repeats after him, which is not permitted on Isru Chag, or everyone recites it together, which is permitted. It seems that with the passage of time, people stopped being familiar with these two styles. This leads the Beit Yosef (citing the Agur) to write, “Tziduk Ha-din may be recited only when praying alone (be-yachid).” Accordingly, the custom today is that when praying with a congregation, during the month of Nissan we do not say the prayer of Tzidkat’cha Tzedek at Mincha on Shabbat. This is because this prayer is essentially Tziduk Ha-din for Moshe Rabbeinu, who died on Shabbat at Mincha time. Thus, reciting it in shul would be a communal Tziduk Ha-din. It should be noted that Parshat Shemini records the death of two of Aharon’s sons. Aharon reacted with silence (“Va-yidom Aharon”). Since Aharon was in effect affirming G-d’s justice, perhaps he did so silently because it was during Nissan.

Anyone who has become tamei, and anything that has become tamei (except for earthenware and food), can become tahor again through immersion in a mikvah. The laws of immersion (tevilah) are recorded in the Mishnah. However, the Torah uses different words to describe it. The verb used for a person purifying himself with water, such as a leper, is rachatz (wash). The instructions for the immersion of an impure item use the verb chibes (launder or clean). The Rishonim clarify that any time there is a reference in the Torah to washing or cleaning, it is talking about immersion in a mikvah. One who is required to immerse in a mikvah must recite the blessing of “Al Ha-tevilah” (“Who has commanded us regarding immersion”). The reason that we use the expression “al ha-tevilah” (literally, on immersion) and not “litbol” (to immerse) is because litbol implies that immersion is an obligation. That would be incorrect. Immersion in and of itself is not an obligation; one is permitted to remain in a state of impurity (Rishonim). What if a person forgot to recite the blessing? He still emerges spiritually pure after the immersion, since we rule that a mitzva is fulfilled even when its blessing is omitted (Geonim). Ezra’s edict, that a man who had a seminal discharge was obligated to immerse in a mikvah, is no longer in effect. If a man does choose to immerse after a seminal emission, should he recite the blessing? This is debated by the poskim. Generally, however, the blessing upon immersing in a mikvah is only recited when a woman has immersed after giving birth or completing her menstrual cycle. As a general rule, blessings are recited before a mitzva is performed (oveir le-asiyatan). However, there is a disagreement as to whether this principle applies here. Some argue that even though an impure person is permitted to make blessings, it is preferable for her to immerse first so that she can recite the blessing while pure. Others insist that the general rule should be followed, and the blessing should be recited before the mitzva is performed. Common practice attempts to integrate both these views. Generally, a person immerses once (emerging pure), then recites the blessing in a state of purity, and then immerses a second time. This way, the blessing precedes the second immersion and may be considered to be done over le-asiyato. All in all, a rather clever solution.

The Torah prohibits the consumption of blood and imposes the punishment of karet (excision) on anyone who disregards the prohibition. However, there is a disagreement about the minimum amount a person must consume to become liable to this punishment. Most sources state that the minimum is the volume of a kezayit (an olive, approximately 20cc). However, in Yevamot 114b, the minimum amount given is a revi’it (approximately 86cc) – four times the volume of an olive. In Responsa Binyan Tzion (#49), Rav Yaakov Ettlinger was asked a question relating to this law. A person was ill, and was directed by his doctor to drink animal blood daily. To avoid doing something normally punishable by karet, Rav Ettlinger advised him to eat less than the minimum amount required for liability. However, it was unclear to the rabbi whether this minimum was a kezayit or a revi’it. Some say that the two different measurements apply to two different cases: one is the minimum for eating coagulated blood, and the other for free-flowing blood. However, Rav Ettlinger rejected this distinction. We may resolve this dispute with a text recently printed by Yad HaRav Herzog (publisher of this book), which lists variant readings of Talmudic texts. There we find that even though the minimum amount is a revi’it in our standard Vilna Talmud version of Yevamot (as well as in the Soncino and Venice Talmuds, which were the basis of the Vilna Talmud), nevertheless, in six manuscripts the amount that appears is a kezayit. The text found in Beit HaBechirah of the Meiri (1249-1306), which was not available in the time of Rav Ettlinger, reads kezayit as well. Now that we are aware of these textual variants, we can easily resolve the contradiction without resorting to casuistic distinctions (pilpulim).

As a general rule, a person who steals from another must reimburse the victim, paying the monetary value of the stolen item. There is, however, an exception to this rule: “When a person sins and commits a trespass against G-d by dealing deceitfully with his fellow in the matter of a deposit or a pledge, or though robbery, or by defrauding his fellow… and if he swears falsely… he shall repay the principal amount and add a fifth to it” (Vayikra 5:21-25). In other words, he must add an additional twenty percent (chomesh) to the value of the stolen item. He is also obligated to bring a guilt offering (korban asham). In order for a person to be liable to this penalty, there are three conditions: 1. He must have stolen. 2. He must have falsely sworn that he did not steal. 3. He must have later admitted that he lied under oath. May a victim decide to waive his right to the payment of the chomesh? According to the Mishnah in Bava Kamma, he may. Given this explicit statement of the Mishnah, it is very difficult to understand the Rambam’s statement, “The chomesh and the [asham] offering are for atonement” (Hilchot Gezeilah 7:8). If the payment of the chomesh serves to achieve atonement for the sinner, it would seem that the victim should not be allowed to waive it. Refusing payment would leave the thief without the ability to achieve atonement for his sins (swearing falsely as well as stealing). One possible way to explain the Rambam is to say that the victim is permitted to waive payment of the value of the stolen item itself. Once he has done this, the additional fifth becomes irrelevant, as a fifth of zero is zero. If this happens, the thief does indeed lose his chance to gain atonement (Kovetz Shiurim). Alternatively, one might argue that the obligation to pay the victim is first and foremost a financial one. Once the thief fulfills this monetary obligation, he achieves atonement for his sins. Therefore, when he has no monetary obligation, even if it is because the victim chose to waive his rights, he achieves atonement (Avnei Nezer). What if there is a case in which the thief does not need atonement? Is there still be an obligation to pay the chomesh? If the reason for the payment is atonement, then the answer should be no. Yet we know that if the thief dies before making the chomesh payment, his heirs must pay it (even though they do not need atonement). This strengthens our earlier suggestion that the obligation is first and foremost monetary, and taking care of the monetary obligation is what achieves atonement.

Spinning Wool on Shabbat Spinning wool is one of the 39 prohibited labors (melachot) of Shabbat, and one of the few explicitly mentioned in the context of making the Mishkan: “And all the skilled women spun with their own hands. . . . All the women who excelled in that skill spun the goats’ hair” (Shemot 35:25-26). The essence of this melacha is gathering small wool or cotton fibers with one’s fingertips or with a spindle, and forming these fibers into yarn. By extension, some say that it is prohibited to form dough into strands and to braid the strands into a challah. The spinning in the Mishkan was unusual. The wool was spun before the goat was sheared, while the wool was still attached to it! This is not the normal way in which wool is spun. Rather, this was a special skill possessed by the women of the time. If someone nowadays were to spin this way on Shabbat, he would be exempt from punishment on the biblical level. This is because to be liable to such punishment, a melacha must be performed in the usual way. Why did the women of the time spin the wool so unusually? A number of suggestions have been offered. First, this shows how eager they were to fulfill G-d’s command. They began weaving even before the animals were sheared! Others maintain that they did this to avoid the possibility of the wool becoming impure (tamei), as living animals cannot become impure. A third, clever explanation is offered by Rav Yechiel Meir of Ostrovtza. He suggests that since spinning the way these women did is not punishable on Shabbat (and rabbinic restrictions did not apply), they were allowed to spin on Shabbat. Being able to spin seven days a week transformed the melacha into a positive commandment which was not time-bound, in which case women had the same obligation as men.

Remembering the Golden Calf In Parshat Ki Tisa, we read about the sin of the Golden Calf. The Torah later refers to this sin and instructs us, “Remember (Zachor), never forget how you provoked the Lord your G-d to anger in the wilderness” (Devarim 9:7). It would seem that just as we can fulfill the mitzva of Zachor relating to Amalek by listening intently when the Torah portion describing the battle with Amalek is read, so too we should be able to fulfill the mitzva of Zachor in relation to the Golden Calf by listening intently to the relevant Torah reading. This would be very reasonable if remembering the sin of the Golden Calf were actually a mitzva. However, the rabbis who list the 613 mitzvot do not, in fact, include this directive. The Ramban is unsure as to whether to include this mitzva on his list, as one could argue that it was relevant only for the generation of the desert, but not for future generations. Even if the mitzva of remembering the Golden Calf is relevant to future generations, no opinion says that the way to fulfill it is by listening to the story of the Golden Calf. Perhaps this is because the story reflects poorly on the Jewish people. The Sefer Charedim makes an interesting suggestion. Perhaps what is pertinent to future generations is the instruction to remember the sins of our forefathers. If that is important, it is even more important that we examine our own deeds daily. Doing so will lead us to be embarrassed by our sins and to repent for them. There are other possible ways to fulfill the directive of remembering the Golden Calf. The Magen Avraham (60:2) says that in the prayer preceding the morning Shema, when we recite the word “be-ahavah” (about the Jews’ love of G-d), we should have in mind that this excludes the time when we did not show our love for G-d, e.g., when we sinned with the Golden Calf. This would qualify as remembering the sin. The biblical texts placed in tefillin are wrapped in calf’s hair. Perhaps this too is to remind us of the sin of the Golden Calf.

The Urim VeTumim The Urim VeTumim served as a vehicle to communicate with G-d. It helped answer such questions as whether Israel should go to war, how the Land of Israel should be apportioned among the various tribes, and whether the city of Jerusalem or the area around the Holy Temple should be expanded. There are different opinions as to precisely what the Urim VeTumim was. Some say that the term refers to the precious stones of the Breastplate (Choshen), while others maintain that it refers to the ineffable name of Almighty G-d (Shem HaMeforash) that was kept between the folds of the Choshen. Many do not include the Urim VeTumim among the eight garments that the Kohen Gadol was required to wear. However, the Rambam does include it. This leaves us with a serious question. During Second Temple times, there was no Urim VeTumim. This is stated by our Sages and confirmed by Josephus (1st century BCE), who states that “The Urim VeTumim disappeared two hundred years before I wrote this book.” If this is the case, then according to the Rambam, how could a Kohen Gadol have served in Second Temple times? It is forbidden for a Kohen Gadol to serve without the required eight priestly garments. A possible explanation is that the Urim VeTumim did exist during the Second Temple period, and was worn by the Kohen Gadol. What changed was that it was no longer a conduit for divine messages. Josephus’s words could be understood as indicating that the Urim VeTumim no longer had the power it once did. Alternatively, it is possible that the masses were not aware that the Urim VeTumim still existed, and that included Josephus even though he was a Kohen.

Making the Ark G-d commanded: “They shall make an Ark” (Shemot 25:10). Neither the Rambam nor the Sefer HaChinuch count making the Ark (Aron) as one of the 613 mitzvot. In contrast, Ramban does. Some believe that the reason Rambam and Sefer HaChinuch omit this is because they feel that this is included in the general mitzva of building the Mishkan (Tabernacle) and the Beit HaMikdash (Temple). Others explain that the mitzva is not counted because it was relevant only for a limited period of time. For we will never need to build a second Ark. The Ark which Moshe constructed was hidden away, and will eventually be found and used in the Third Temple. Even Shlomo, who crafted new items for the Second Temple, did not make a new Ark. The Ramban, who counts the mitzva of making the Ark as one of the 613 mitzvot, does not count making other items for the Tabernacle as separate mitzvot. This may be because the other items – the Menorah, the Shulchan (Table), and the Mizbe’ach (Altar) – merely enable different types of divine worship. The Menorah is lit, the showbread is placed upon the Shulchan, and the sacrifices are offered on the Mizbe’ach. Thus, crafting these items only enables an act of service and is not a mitzva in its own right. In contrast, the Ark does not play a secondary role in divine service, but rather is holy in its own right. Thus, constructing it is its own mitzva. The language used in relation to making the Ark is also different from the language used when describing the crafting of the other items. When speaking of the Ark, the Torah states “ve-asu aron” – you (plural) should make it, while when referring to the crafting of the other items, the Torah states “ve-asita” – you (singular) should make them. Rambam could explain that the singular “ve-asita” is meant to convey that each and every individual is obligated to ensure that these items are crafted. In contrast, the plural “ve-asu” is a general directive, which is not incumbent on each individual. Therefore, it is not included in the 613 mitzvot. Ramban, on the other hand, could say that the use of “ve-asu” expresses the obligation for the Jewish people for all generations to craft the Ark, while the use of “ve-asita” expresses the personal obligation of Moshe alone to craft these items. Thus, only the making of the Ark is counted as a mitzva. Though the Rambam did not count the making of the Ark as a mitzva, he did include the mitzva of the Levites to carry the Ark on their shoulders (and not in a wagon). However, he did not count as separate mitzvot the prohibitions on touching or gazing upon the Ark. In contrast, Rav Saadia Gaon, Rav Shlomo Ibn Gabirol, and the Sefer Yere’im do include these among the 613 mitzvot.

Fire: Damages Avot Nezikin “When a fire is started and spreads . . . the one who started the fire must make restitution” (Shemot 22:5). A number of scenarios can result in fire causing damage. In the three cases discussed below, the person lighting the fire or fanning the flame is responsible for the damage done. 1. A person lights a fire on his own property, and it spreads beyond the fence enclosing his property and damages his neighbor’s property. The fence could not have been expected to stop the fire. 2. A person lights a fire on his own property and there is a fence which should have been able to stop the fire, but unfortunately did not. 3. A fire was already burning on a neighbor’s property. Someone fanned the flames and the fire spread, ultimately destroying the neighbor’s property. Rav Yochanan and Resh Lakish disagree on the reason a person is liable if he starts a fire which causes damage. Rav Yochanan states that he is liable because “his fire is like his arrows” (isho mishum chitzav). Someone who shoots an arrow is accountable for any damage the arrow does. Similarly, a person who starts a fire is accountable for any damage his fire causes. If this is correct, though, in Case 2 the person should be exempt. The fact that the fence should have stopped the spread of the fire should be the equivalent of his arrows having come to rest (kalu lo chitzav), at which point he is exempt from damages. Resh Lakish disagrees. He maintains that fire cannot be compared to an arrow, because fire can spread on its own. Rather, the reason the fire-setter is liable is that just as a person is responsible for damage done by something he owns (like his ox), so too he is responsible for damage done by a fire he set. In other words, “his fire is like his property” (isho mishum mammono). If this is correct, though, then in Case 3 the person should be exempt since he did not set the fire. We can resolve this problem if we assume that it is the additional fire (which he caused by fanning the flames) which is considered his property that caused damage. This disagreement is not absolute. For in some instances, Rav Yochanan agrees that one can become liable because the fire is deemed his property. For example, in Case 2, although isho mishum chitzav might not apply, the person is still responsible because isho mishum mammono applies. If this is so, would Rav Yochanan assert that a person is liable if he fanned the flames of someone else’s fire, which then spread beyond a fence that should have been able to stop it? Commentators disagree. Some say that if neither mammono nor chitzav can apply, Rav Yochanan would exempt the person from liability.

Deriving Laws from Pre-Sinaitic Sources “Anything we prohibit or practice today is only because of the commandments which G-d gave to Moshe Rabbeinu... We do not undergo circumcision just because Avraham Avinu circumcised himself and the members of his household, but rather because G-d commanded us through Moshe to circumcise our sons just as Avraham circumcised his sons (Rambam, Peirush Ha-Mishnayot, Chullin). The Torah was given at Sinai, and Jewish law was established then. Whatever our forefathers did, they did of their own volition and not because they were given a Torah mitzva. As a result, even though G-d said to Avraham, “Your name shall be Avraham” (Bereishit 17:5) and our Sages derive from this that anyone who calls Avraham by his former name Avram is transgressing a positive commandment, such a mitzva is not included in the list of the 248 positive commandments. This is because Avraham’s story took place before the Torah was given at Sinai. This principle, however, presents us with numerous difficulties. How is it that our Sages derive that one must be quick to perform a mitzva from the episode of Avraham arising early in the morning to fulfill the directive of G-d to sacrifice his son Yitzchak? How did our Sages learn from Lavan that we do not mingle semachot? (See the first essay in Parshat Vayetze.) How could our Sages derive the requirement of using a knife to slaughter an animal from the story of the sacrifice of Yitzchak, where the Torah says, “And he took the knife to sacrifice his son” (Bereishit 22:10)? There are many more examples. A number of solutions have been proposed: 1. We do not actually derive mitzvot from stories about our forefathers. We do, however, derive details of how to fulfill them. 2. The only types of laws we derive from pre-Sinaitic times are those that are logical and have clear reasons behind them. We do not derive laws which are simply divine decrees (gezeirat ha-katuv) from this material. 3. If we have no other way to derive a law, and it does not appear among the laws given at or after Sinai, we may derive the law from material that appears before the giving of the Torah. 4. We derive the law from pre-Sinaitic sources only in cases where we can explain why this specific mitzva went into effect even before the giving of the Torah. 5. We can use pre-Sinaitic material to clarify words and other details of laws given at Sinai.

“This is My G-d and I Will Glorify Him” Zeh Keli Ve-anvehu The title of this essay (zeh Keli ve-anvehu) is taken from a verse in Parshat Beshalach, and we derive from it the concept of beautifying a mitzva (hiddur mitzva). This includes such diverse practices as decorating the sukkah, buying a nice lulav and etrog, using an exquisite shofar on Rosh Hashanah, wearing a beautiful tallit, and more. Not only should we beautify mitzva objects themselves (sukkah, lulav, shofar), but we should also beautify the objects which come into contact with them. Therefore, not only were ribbons tied around the first fruits that were brought to the Temple, but the wagons transporting the fruit were also decorated, and even the ox leading the procession. Although hiddur usually involves beautifying an object, sometimes it refers to increasing appreciation for a mitzva. So, for example, we are forbidden to eat in the afternoon before the Pesach seder, so that we will have a hearty appetite for matzah at the seder. Our Sages disagree as to whether the obligation to beautify mitzvot is biblical (hence the verse cited above) or rabbinic. An intermediate opinion is that the mitzva is biblical, but the rabbis are empowered to define the specifics of what qualifies as a hiddur. This difference in opinion has practical ramifications in situations when the obligation of hiddur conflicts with other obligations, whether they are biblical or rabbinic. For example, what if a person’s current etrog is a simple one, but he knows that in the course of the day he will have access to a more beautiful one? Should he fulfill the mitzva of lulav and etrog in the morning, following the general principle that those who are enthusiastic perform mitzvot as soon as possible (zerizim makdimim le-mitzvot), or should he wait in order to use the more beautiful etrog? Of course, in this case he has the possibility of doing the mitzva of lulav and etrog twice that day. However, there are other cases where this is not a possible solution. For example, let us say a person is planning to use plain wax candles in his Chanukah menorah, and he has already melted the bottoms into the holders to make sure the candles are stable. Now someone brings him quality olive oil, which is the preferred (mehudar) fuel for lighting. Should he remove the candles, or would doing so be considered treating a mitzva disrespectfully?