Monthly Archives: May 2014

Parashat במדבר Numbers 4:3 – No student left behind

Parashat במדברNumbers 4:3 –No student left behind

Numbers 12:3 “from thirty years old and upward even until fifty years old, all that enter upon the service, to do work in the tent of meeting ”

Hullin 24a: “25 years old to learn and 30 years old to serve.  From here we learn that a student that did not see positive signs in his learning after five years will never see them”

Torah Temimah Colloquial Translation on Note #2:

The Torah specified these five years for learning because these are the last stage.  Thus, one who does not see positive signs in learning, during these years, will never see them.  Based on this, one can explain why the Tanah of the Mishnah in Ethics of the Fathers (5:21) lists the ages for learning in increments of five years (5 years old for scripture, 10 years old for Mishnah, 15 years old for Gemara.  Therefore, if a nine year old student does not see positive signs in his scripture, one is obligated to work with him one more year because there is still hope that the student will improve in scripture.  The same applies to all of the stages mentioned in the Mishnah.

See also the comment of on Nachmanides on this midrash in his Torah commentary (Parashat Behaalotecha – Numbers 8:24)

I do not know if this opinion is according to all the Rabbis for I have seen this statement in the Sifrei attributed to Rabbi Natan.

I do not know how to interpret Nachmanides because both the Gemara and the Sifrei that we have quote this learning anonymously[1].

Editor’s note:

The Torah Temimah stresses how important it is never to give up on students who are slow learners. Here Torah, here gives the Levites five years to learn the trade, as it were.  The Mishnah he cites gives five years for each stage of learning.  He stresses that it is most import to work with the student toward the end while there is still hope for the student to progress.  This is usually long after most teachers have given up in despair.

Many times, the Torah Temimah tries to resolve contradictory versions in the sources.  Here, he admits, that ,based the sources available, he is unable to interpret Nachmanide’s comment.

 

[1] Nachmanide’s copy of Sifrei mentions Rabbi Natan.  See Torat Chaim note 24 on the commentary of Nachmanides.  The Horrowitz edition of Sifrei mentions that there are versions that do not mention Rabbi Natan, implying that some do.

Parshat בחקתי Leviticus 27:34 – For What Purpose Will Eliyahu Come?

Leviticus: 27:34 These are the commandments that God commanded Moshe to [tell] the Children of Israel

Shabbos 104a: “these are the commandments” – from here [we learn] that henceforth a prophet may not declare any new laws.

Translation of Torah Temimah’s Comment in Note 216: Moshe was the only legislator of the Torah in its essence. All the prophets after him only came to explain and to exhort [the people to follow] the Torah of Moshe. This is also according to the translation of the Targum Yonatan who translated “These are the laws that God commanded Moshe, it is no longer possible to command new laws from their מדעם [their own thinking].

It appears at first [superficial] glance that a prophet is not allowed to create new laws, but if he were reinstituting an old law that had been forgotten for many years, then this prohibition would not apply due to the fact that actually this particular law had been essentially commanded through Moshe. However, this is not the case. We see this in the Gemora Temurah 16a where it mentions the fact that 3,000 laws were forgotten in the days during which the Jews were mourning the death of Moshe. [After the mourning period ended] the people requested that Joshua ask the Urim and Tumim [for the laws]. Joshua responded that the Torah is not in heaven. [Later], the people asked Shmuel to ask [the Urim and Tumim] and Shmuel responded to them “these are the commandments; a prophet may not declare any new laws”. Behold, [the Gemora] explicitly states, therefore, that even to renew laws that had been forgotten is not permitted. Perhaps one can explain the inclusion of these types of laws in the prohibition as being due to the fact that we no longer know the exact root of these laws, and since the new law is now coming to use fundamentally through the thought of the new prophet, it is therefore considering in the category of a “new law”.

On the other hand, see the discussion in Gemora Megilla 3, where it is discussing this issue of prophets declaring new laws. In that Gemora, it asks how it can be since “a prophet may not declare any new laws”. In Megilla, the response is that these laws are different since they were forgotten and the prophet is not only returning and re-establishing them. In other words, since the prophet is not decreeing totally new laws, only re-establishing old ones, they are not included in the prohibition mentioned above. Apparently this is a complete contradiction from the Gemora Temurah that we quoted above where it says that reinstituting old laws is included in this prohibition!

In order to reconcile these two Gemoras, one needs to explain as follows: There are two methods for a prophet to reinstitute old, forgotten laws. One method is through prophesy and the other method is through the general methods of Torah analysis and logic as with any other Torah scholar. This being the case, this issue now becomes clear. Returning old, forgotten laws through the general methods of Torah analysis and logic certainly would be permitted since a prophet is not less competent than any other scholar who knows the wisdom of Torah. In this method there is not even a hint of prohibition. Only through returning old laws through prophesy is there a prohibition.

Therefore, according to this explanation, the Gemora in Tractate Megilla [which said it is permissible] is dealing with the case where a prophet renewed old laws through the methods and principles of Torah analysis which is certainly a permissible approach. In the Gemora in Tractate Temurah, the situation is one where the prophet is attempting to restore an old law through prophesy. This is shown by the fact that they asked Joshua and Shmuel to ask the Urim and Tumim. This explanation is slightly forced.

Also, keep in mind that which it says in many places in the Gemora, “when Eliyahu comes, the exact law will be made clear”. The intent of this statement is not that Eliyahu will reveal the law through prophesy. This can’t be the case since he would have no permission to do this, as we just explained. Rather, the intent is that through the heavenly spirit that is resting on him, the depths of wisdom will be revealed and Eliyahu will then clarify the law through the general methods and principles of Torah. Eliyahu will thus remove arguments and mistakes; this will result in an ability to truly clarify the law. This explanation also helps explain the intent of the Mishna at the end of Ediyot where it says “Eliyahu is not coming to clarify what is pure vs. what is impure; rather he is coming to bring peace to the world”. That is to say, Eliyahu will not reveal laws to teach about purity and impurity through is prophetic powers. Instead he will make peace between [groups] that argue. He will do this by clarifying the logical arguments behind the disagreements to such an extent that each group of scholars will admit [to the wisdom] of the others. After that happens, automatically everything will be clarified and the true law will come as a result.

See what is written in Gemora Yoma 75a as follows: “Our Rabbis taught: ‘Gad’ i.e., the manna resembled the seed of flax in its capsules. Others say: ‘Gad’ i.e., it was like a tale, which draws the heart of man, even like water.Another [Baraitha] taught: ‘Gad’, because it revealed to Israel whether the child was one of nine months’ pregnancy from the first husband, or of seven months’ [pregnancy] from the second.‘White’,because it makes white [cleanses] the sins of Israel. It was taught: R. Jose said: Even as the prophet would tell Israel what is to be found in clefts or holes so would the manna reveal to Israel what is to ‘be found in clefts or holes’. How that? If, e.g.,two men came before Moses with a law-suit, one saying: You have stolen my servant, the other saying: You have sold him to me, Moses would say to them: Tomorrow judgment will be pronounced. Tomorrow, then: If his [the slave’s] ‘omer was found in the house of his first master, it was evidence that the other one had stolen him; if it was found in the house of his second master, that was proof that the former had sold him to the latter.”

The book Kafot Tamarim asks how it is possible in the above Gemora that Moshe relied on this heavenly clarification. Doesn’t this go against the principle of “Torah is not in heaven”? Further, doesn’t it say in Gemora Yevamos 102b that if Eliyahu would come and declare that it is permitted to do halitzah with a sandal that we should not listen to him due to the principle of “Torah is not in heaven”.

However, in my opinion all of these questions are not even close to valid questions. The prohibition of a prophet not creating new laws only applies in the cases where there is a doubt as to what the law is or in cases as we explained above. But in situations of clarifying a fact or revealing a situation, certainly it would be permitted to rely on a prophet. We find this situation in the Gemora Bechoros 24a, the following sentences: “And, moreover, if it is according to the Rabbis, why ‘Until he come and teaches righteousness to you’? ‘Until it be known to you’ is what is required?” Rashi there explains that this means that the Messiah will come and reveal the facts of the case. It is clear from this Rashi that we can rely on a prophet to reveal facts and situations. Also, look in the book “Meleches Machshavos” where he writes in Chapter 9 at the end of Halacha 6 of Ishut what he writes on this matter. What he writes there is not clear and according to our opinion this is simple and clear.

In addition to what is above, according to our explanation of the statement that a prophet is not allowed to create any new laws [that is to say, from the time of Moshe and onwards], Moshe however certainly could do this. This being the case, the Gemora brought above from Yoma took place through Moshe. That being the case, there should be no question at all about the reasoning behind that Gemora.

Know, further, that clearly all the ‘fences’ and ‘decrees’ [that prophets and sages have decreed] do not fit into this category of a ‘prophet is not allowed to create new laws’. Quite the opposite, actually. Rather, these decrees and ‘fences’ are fulfilling a commandment straight from the Torah itself as it says in Leviticus 18:30: “You shall diligently guard my charge…” This is taken to mean “you should make a protection for my protections”. Therefore, this [Torah] commandment is the reason why we find that, in fact, many decrees and fences were decreed [even] by prophets.

Examine the Rambam in Chapter 9:1 in the Book “Principles of the Torah” (התורה  יסודי) where he explains at great length regarding this particular principle (of a prophet not being able to decree new laws through prophecy.) It is astounding that the Rambam brings as a support for this principle the posuk of “Torah is not in heaven” as opposed to mentioning our posuk “these are the commandments” which is explicitly cited many times in the Gemora as the source for this principle. Investigate further what the Lechem Mishna says. Additionally, one can also say that included in his words are the concepts of “not adding nor subtracting from the Torah” as is explained in Parshat VeEtchanan. The Ramban in his commentary writes that the prohibition of “not adding nor subtracting from the Torah” relates to the particulars of known commandments. For example, [such items as the following would be included] – don’t have 5 strings in tzitzit or 5 parchments in the tefillin. However, according to the Ramban, our posuk of “these are the commandments” is specifically talking about the prohibition of creating new laws that have never been known before [at all].

In the opinion of the Rambam [who is disagreeing with the Ramban in this particular point], he feels that [creating new laws and adding to or subtracting details from existing laws] are really [different aspects] of one principle. It is merely [a happenstance] that the Torat Cohanim attributes this principle to the posuk of “these are the commandments” while in the Mishnah Torah (Sefer Devarim) [this same principle] is attributed to the posuk of “thou shalt not add or subtract from the commandments”. This difference in attributing principles to different posukim [or changing of phraseology] between the Torat Cohanim and the Mishnah Torah occurs a lot in various wordings and teachings. We need not lengthen this discussion any further.

Editor’s note: Besides being a long note, this essay of the Torah Temimah contains a wonderful exposition on the purpose and value of the Messiah coming. The Torah Temimah quotes the famous Mishnah that the Messiah is not coming to clarify laws and details relating to ritual purity and impurity but rather to bring peace to the world.

 

Parshat בהר Vayikrah 25:36 – Interest

Parsahat בהר Leviticus 12:3 –

Leviticus 25:36 “Take thou no interest of him or increase; but fear thy God; that thy brother may live with thee”

Bava Metzia 62a: “… that thy brother may live with thee – It was learnt in a braita: Rabbi Elazar says that one can demand a repayment of explicit interest in court whereas one may not demand repayment of that that hints of interest[i].  What is the reason for this?  Because the verse says Take thou no interest of him or increase … so that thy brother may live with thee.  Only that by which your brother lives can be demanded in court.”

Torah Temimah Colloquial Translation on Note #192:

The specifics of the laws regarding interest, even though they are numerous and differ one from the other, they all stem from a single foundation as explained in Bava Metzia 65b:

The main principle of interest is: any payment for safeguarding [money] is forbidden.

This means, any extra payment regarding money whether it be a loan or a sale.  For example, it is forbidden for the seller to say to the buyer: “If you pay cash up front, it will cost you $100, but if you pay you up to such and such date[ii] it will cost you $120.  There is a difference, however, between the two types of interest. Charging interest by way of a loan is interest that pertains something fixed.  This type of interest, referred to as explicit interest, is forbidden by the Torah.  Interest by way of a purchase, however, is only forbidden rabbinically.  It is also called a hint of interest.  The law regarding this type of interest is that one is forbidden from charging this interest, but the court does not force the seller to repay any interest charged in this manner.  Thus if the buyer complains, the court does not extract payment from seller unless the seller wishes to go above and beyond.  This is what is discussed here.

It is well known that in recent times, it is permitted for one to charge interest with respect to business transactions as will be explained.  This is very perplexing for there is not even the slightest hint in the Torah for allowing this.  Furthermore, the basis upon which Chazal saw fit to permit this is unclear.

It appears that our Sages saw a basis and a need for permitting this on the whole.  They investigated the matter until the crux of the prohibition, its basis and essence in the Torah, built and founded upon the principle of “that thy brother may live with thee”.  In the time when Torah was given, the main livelihood and business of the Jews was working the land. This was the basis for their wealth and stature.  One who had a lot of produce[iii] was considered wealthy.  Money was not an integral part of one’s livelihood.  When they loaned money it was not for business nor for acquisitions rather to allow one who was lacking to procure food and clothing just as one would procure these from the profit of his field or his work.  It is understandable that the poor borrower had no intention to pay back the loan with interest.  There was also no recognizable loss to the wealthy lender who loaned without charging interest.  Because they had no financial business, the principle of  thy brother living with thee did not apply.  In the middle ages, when the Israel lost its portion in working the land,  it remained a nation that thrived only on finance.  They could no longer continue the prohibition of loaning without interest now that money was the main basis for their livelihood and commerce, making the matter of interest equal for both the borrower and lender..  Thus the Sages saw fit to permit this.  Because of this principle, they reasoned that the Torah did not completely forbid charging interest.  Thus it appear to me.

The practice for loaning with interest was to write in the legal document that the lender is giving the money to the borrow for the purpose of business as explained in Yoreh Deah 167:1 and 177:2.  The borrower is permitted to invest the money for the profit of the lender based on the estimated gains. The estimated gains went to the lender.  Any profit above the estimated gains would go to the borrower.  If the borrower lost money on the investment, it was forbidden for the lender to collect the estimated gains. 

On the other hand, interest by way of sale, as described above, is very commonplace despite the lack of any provision for a leniency.  This leniency is stated the Tosefta (Bava Metzia 6:4)

A buyer purchasing goods with the intent to pay within 12 months is allowed to ask the seller to reduce the price if the buyer pays the entire amount up front.  In this case there is no concern of interest.[iv]

It requires further study how this is permitted.  There is to say that valuating the transaction if sold immediately as opposed to on credit[v] transforms the sale into a business transaction.

The Nimukei Yosef writes: since “that thy brother may live with thee” is a positive commandment, the court forces the lender to return the explicit interest in the same way the court can force a person to perform any positive commandment.  This is done by beating the person until one agrees to perform the commandment. The court, however, does not have the authority touch one’s assets because subjugation of assets does not apply in this case.  Similarly, this is explained in Yoreh Deah 161:5.  I find it troubling that the court can physically coerce a person, but cannot monetarily coerce the person to return the interest.  After all, if all the ways of Torah are pleasantness (Proverbs 3:17), how can physically coercing a person until one’s soul departs be called pleasant when the court could spare the person at the expense of one’s assets?  I did not find this law in Maimonides code of laws.  The words of the RaN, as cited by the Nimukei Yosef that one physically coerces a person until one’s soul departs (he dies), but cannot touch one’s assets, are extremely troubling to me.  In the first chapter of Ketuvoth, the RaN writes the opposite:

Just as one can physically coerce a person to perform a positive commandment, one can monetarily coerce a person.

Also for charity, the rule is that the court can touch a person’s assets when a person refuses to give charity.  Therefore, it seems to me that this law as it pertains to interest requires in depth study.

Editor’s note: The Torah Temimah was a bookkeeper by profession.  Thus the laws of interest were not only abstract halachah but part of his daily job.  Knowing the particulars of finance and halachah he demonstrates how and when loaning with interest is permitted in our day.  This note also shows his sensitivity.  He is troubled by the those authorities who rule that one may only physically coerce a person to return explicit interest whereas, with respect to fulfilling other positive commandments, one may coerce a person monetarily.  Out of respect to the Shulchan Aruch and the earlier authorities who rule this way he does not dismiss this halachah, yet he notes that further study is required.  There are opinions that hold the halachah represents the will of Hashem.  If one finds a particular law troubling, the problem is not with the halachah rather with the person’s understanding of the halachah.  Here the Torah Temimah shows that is acceptable to question when one finds a particular halachah troubling.  This is not grounds for amending or abolishing the halachah.  Further in depth study is required to make a decision.

Second editor’s note: In this note, the Torah Temimah quotes the RaN as saying that if you illegally took interest from a person, the court can force you to return the money through lashes, even to the point where you might die from the lashes. The RaN also states that in this instance, however, the court cannot put a lien on your property.

The Torah Temimah has two objections to this opinion of the RaN. First of all, it is said about the Torah that “all its ways are ways of pleasantness”. This isn’t pleasant at all! Secondly, the RaN actually contradicts himself in a comment on Ketubos, Chapter 10.

Personally, I find these two objections wonderful. I find it wonderful that the Torah Temimah objects to the RaN’s interpretation because it would violate a “meta” principle that the Torah’s ways must be ways of pleasantness. SECONDLY, there are various technical reasons for rejecting the RaN’s approach. The Torah Temimah is dedicated to promoting and projecting a vision of Torah that is just and “whole”.

[i] אבק ריבית literally the dust of interest

[ii] Whether the buyer pays in installments until the specified date or whether the buyer pays the entire sum at that date

[iii] תבואה literally wheat, but also biblically refers to all produce from the field

[iv] As noted above, the seller may not charge a higher price for paying on credit vs. immediate payment.  Here the buyer is allowed to ask for a reduced price if the seller agrees.  There is no hint of interest in that the seller is losing money on the sale.

[v] הקפה could also be translated as deferred payment