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Vol. 19 No. 36
Yisroel ben Binyomin z"l
whose Yohrzeit will be
The Mekoshesh Eitzim
(Based on Tosfos in Bava Basra)
"And they took him (Tz'lofchod) into him in custody, for it had not been clarified what should be done to him" (15:34).
The Gemara in Bava Basra (119a) points out that the Pasuk in Emor, when dealing with the son of the Egyptian who cursed Hashem, writes "They took him into custody to clarify at the Hand of Hashem".
To reconcile the change of expression, the Gemara explains that whereas Moshe did not know whether the latter was due to receive the death-penalty, he did know that someone who desecrates the Shabbos had to be put to death (as the Torah writes in "Those who desecrate it are Chayav Miy-sah"). What he did not know was which of the four types of death Tz'lofchod was due to receive.
Tosfos there asks why, if Moshe did not know which death Tz'lofchod deserved, then he should have applied the principle that unless otherwise specified, 'Miysah' means Chenek (strangulation - the most lenient of the four types of death)?
They answer that since breaking Shabbos in public is compared to idolatry (in Sanhedrin, Tosfos compares it to denying G-d), Moshe figured that logically, he ought therefore to receive S'kilah (stoning, the most stringent of the four deaths). This line of thought conforms with the Ba'al ha'Turim, who explains that the Torah juxtaposes the Parshah of the Mekoshesh to that of a Megadef (idolatry), to teach us that someone who breaks Shabbos (in pub-lic) is compared to someone who worships idols. According to Tosfos, it seems, it is to explain why Moshe thought that Tz'lofchod (the Mekoshesh) de-served S'kilah, and not Chenek.
The same Tosfos there concludes that the Ge-mara which assumes that Moshe knew that Tz'lofchod was Chayav Miysah, goes according to the Chachamim in Sanhedrin (80b) that it is suffi-cient to warn a person that he will be Chayav Miy-sah should he go ahead and transgress. Rebbi Ye-hudah maintains that one needs to actually specify which type of death awaits him; according to him, Tz'lofchad was not guilty of the death sentence. Consequently, he ought not to have been taken into custody either, and we are forced to say that the fact that he was, was a Hora'as Sho'oh (a special ruling for that occasion only).
Tosfos concludes that if so, according to Rebbi Yehudah, Moshe did not know that Tz'lofchad was in fact Chayav Miysah. The Torah Temimah asks why they say that. Why will it not suffice to say - even if Moshe did know that he was Chayav Miysah - that it was a Hora'as Sha'ah be-cause, since Moshe did not know which Miysah he was due to receive, the witnesses' warning would have been inadequate, and practically, he could not be sentenced to death?
The Gemara in Sanhedrin (78b) says the same thing about the Megadef, according to the Chachamim there - namely, that Moshe placed him under arrest in the form of a Hora'as Sha'ah. There however, the Gemara clearly defines the Hora'as Sha'ah as the fact that, since Moshe did not know for sure that he was Chayav Miysah, he should not have been incarcerated. To stress once again, under normal circumstances, there is no such thing as in-carceration per se. Taking into custody is only em-ployed to clarify details concerning the death-penalty. Consequently, since it was not known for sure that the Megadef was in fact, subject to the death-penalty, there was no justification for incar-cerating him. Hence the Gemara concludes that it must have been a Hora'as Sha'ah.
Based on the Gemara in Sanhedrin, it is safe to assume that the same interpretation of Hora'as Sha'ah regarding the Megadef according to the Rabbanan, will apply by the Mekoshesh according to Rebbi Yehudah; namely, that it was based on the fact that Moshe did not know that Tz'lofchad was Chayav Miysah (and not merely on a flaw in the witnesses' warning, as the Torah Temimah sug-gests). That explains why Tosfos concludes that ac-cording to Rebbi Yehudah, Moshe did not know that Tz'lofchad was in fact Chayav Miysah.
See the Maharsha there (in Bava Basra) who gives the same answer in reply to a similar Kashya of the Maharshal.
When Did the Incident Take Place?
"And the B'nei Yisrael were in the desert when they discovered a man gathering wood" (15:32).
Rashi comments on the Torah's insertion of the seemingly superfluous words "in the desert". Citing the Sifri, he explains that the episode with the Mekoshesh occurred on the second Shabbos af-ter they entered the desert. In fact, the Pasuk be-longs in Beshalach, after they were commanded about Shabbos when the Manna first fell. And it is coming to teach us what a disgrace it was that Yis-rael only managed to keep one Shabbos before desecrating it!
Based on the previous article, where we cited the Pasuk in ki Sisa (which was said after Matan Torah) as the source for the assumption that Moshe knew that Tz'lofchod was Chayav Miysah, the To-rah Temimah questions whether the Gemara con-curs with the current Sifri. It certainly appears that the Sifri dates it before Matan Torah, whereas the Gemara dates it after Matan Torah!
Interestingly, both the Ramban and Rabeinu Bachye explain that the incident with the Mekoshesh took place after the sin of the Meraglim, and it is in that connection that they explain the word "Bamid-bar". R. Bachye presents a number of alternative ways of explaining the word "Bamidbar". But he omits the explanation of the Sifri.
Clearly, they follow the opinion of the Gemara that we cited earlier, which, as the Torah Temimah suggests, does not concur with the Sifri. Interest-ingly, the author of the Sifri is Rebbi Yehudah, ac-cording to whom Moshe did not know whether Tz'lofchod was Chayav Miysah or not. To be sure he didn't, since the incident occurred before Matan Torah, at a time when the Pasuk "Those who dese-crate it will surely die" had not yet been said, in ac-cordance with the opinion of the Sifri.
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Mitzvos, Mitzvos, Mitzvos
(Translated from the Medrash Tanchuma)
On the Pasuk "and they shall make for themselves Tzitzis" (15:38), the Medrash citing the Pasuk in Yeshayah " (42:21) "G-d desired for the sake of Yisrael's righteousness, to make Torah great and glorious". G-d gave Torah to Yisrael as a means to earn Eternal life in the World to Come. To that end, He left nothing that does not have a Mitzvah attached to it.
A person goes …
to plough …...
Do not plough with an ox and a donkey simultaneously!
Do not plant your vineyard with a mixture (together with wheat and barley)!
When you reap your harvest in the field, and you forget a sheaf in the field, do not return to fetch it! Separate T'rumos and Ma'asros!
to knead dough …...
The first of your doughs you shall separate Chalah!
Recite a B'rachah over your food!
to sheer wool…...
The first of your shearings you shall give to the Kohen!
His animal begins to give birth……
Give the firstborn to the Kohen!
He comes to Shecht it…...
Give to the Kohen the foreleg, the jaws and the stomach!
To Shecht a fowl or a deer…...
Cover its blood with earth!
He comes across a bird's nest…...
Send away the mother bird… !
To buy himself clothes…...
Do not wear Sha'atnez!…
He fathers a son…...
Regarding cohabiting with his wife …..
Separate from her at given times!
He comes to plant trees …...
Leave the fruit for three years!
To bury his deceased…...
Do not make cuts in your skin!
Do not cut off your Pe'os!
To build a house…...
Build a parapet round your roof!
To put up the doors…...
And you shall write them on the doorposts of your house!
To put on his cloak …...
Make Tzitzis on its four corners!
The Medrash compares this to a man who fell into the sea and is drowning. The boat's captain throws him a line and warns him 'Hold on to this line for dear life. Otherwise you will die!'
'For they are our life and the length of our days!' we say every night at Ma'ariv!
Mitzvos are our lifeline - If we fulfill them, we will earn life in both this world and the next.
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