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Parshat חקת – Bamidbar 20:1 – Did Miriam Die for Our Sins?

Bamidbar 20:1 – The entire congregation of the children of Israel arrived at the desert of Zin in the first month, and the people settled in Kadesh. Miriam died there and was buried there.

Gemora Moed Kattan 28a: It was taught in a Beraisa as follows: Rabbi Ami asked why is the narrative of the death of Miriam adjacent to the narrative of the Red Cow? He answered: to teach that just as the Red Cow atones for sins, so does the death of the righteous atone for sins.

Torah Temimah Colloquial Translation on Note #2

One needs to ask why the narrative of Miriam’s death is adjacent to the story of the Red Cow, specifically, and not next to many of the other ceremonies that also are meant to achieve atonement such as sacrifices or the clothing of the high priest. Perhaps one can explain the answer according to that which is stated by Rashi in the previous chapter (19:22) that the Red Cow is meant to atone for the sin of the Golden Calf. This is analogous to the mother coming and atoning for her child. In other words, the mother cow (Red Cow) is atoning for the calf (Golden Calf). Then with a slight linguistic change, one can say that this is similar to the death of Miriam in her role as the mother to the Jewish People.

[On the other hand] it is not clear what is meant, in general, by the statement that the death of the righteous people [somehow] cause an atonement and what would be the reasoning behind such a statement. Perhaps the answer is in accordance with the statement in Pirkei d’Rabbi Eliezer (Chapter 17) when it discusses the death of Shaul (in Samuel 2, Chapter 21) where it states

“And they buried the bones of Saul and Jonathan his son in the country of Benjamin in Zela, in the sepulcher of Kish his father; and they did all that the king commanded. And God was entreated for the land after that.”

Pirkei d’Rabbi Eliezer states that since God saw that the Jewish people dealt kindly [appropriately] with Shaul’s body [after his death] in that they fasted and cried and eulogized him, God then was filled with mercy towards the Jewish people. This is the meaning of the phrase “And God was entreated for the land after that.”

Thus, it is clear from here that it isn’t the death, itself, that causes the atonement. Rather, the mourning and the honor that are given to a great person who has passed away is what what causes God to [in a corresponding way] look kindly on the Jewish people because the honor that the people are showing to the great person is, essentially, showing honor to God.

Editor’s Note: The idea that the death of a righteous person somehow, magically, causes atonement to the living is a foreign concept to Judaism. The Torah Temimah is pointing out, in this note, that it is not the death itself that causes God to show mercy to the living; rather it is the kind manner and loving mourning for the deceased that arouses God’s mercy.


Parshat במדבר Bamidbar 15:24 – Should Judges Have a Retirement Age?

Bamidbar 15:24 – If because of the eyes of the congregation it [the sin] was committed inadvertently, the entire congregation shall prepare a young bull as a burnt offering for a pleasing fragrance for the Lord, with its prescribed meal offering and libation, and one young he goat for a sin offering.

Gemora Horayot 4b – [If such a case happened and] the Sanhedrin taught an erroneous halacha but it was found that one of the members of the Sanhedrin was a convert, or a bastard or a “Natin” or an elderly person who cannot bear children, then this law does not apply. This is proven by the word “congregation” in our verse. In our verse the word “congregation” is used and it is also used in Numbers 35:24. Just as in that verse it means a congregation (court) where all members are appropriate to be judges so too in our verse it must mean a congregation (court) where all members are appropriate to be judges.

Torah Temimah Colloquial Translation on Note #64:

See also what [I have written] at length on this topic in Vayikra 4:13 (note 69) regarding a Great Court that makes an error in judgement that causes the Jewish People to sin unintentionally.  

Note also that the phrase in our verse “the eyes of the congregation” is an expression alluding to the Great Court (Sanhedrin) because, in effect, the Court acts as the eyes of the Congregation. Additionally, the Court enlightens the eyes of the Congregation through their teaching and their judgements.  Reference those notes in Vayikra to understand the Sages’ necessity for their explanation and their statement that every single member of the Court must be found to be fitting to be on the Court.

In regard to the specific phrase: “an elderly person who cannot bear children”, Rashi states “it is unclear to me why such a person is unfit to be a judge”. These words of Rashi are astounding. It states explicitly in Gemora Sanhedrin 36b that one should not appoint as a judge an old person, a eunuch or one who does not have children. The reasons for these disqualifications are that such people are not [generally] merciful.

Additionally, an elderly person, even though he had children when he was younger, nevertheless, he has forgotten the trials and tribulations of raising children and he will not be merciful. See also the commentators on the Mishna.

It is virtually certain that there is a textural error in his words or perhaps he had a different text. Certainly, the text that we have in front of us is problematic in that it combines two separate issues into one with the phrase “an elderly person who can’t bear children”. These are actually two separate, distinct issues. 1) An old person 2) One who cannot bear children (even if he is a young person.)

Note that, in fact, the Rambam in Chapter 13 Halacha 1 of Unintentional Sins writes the words “either an elderly person or one who does not have children”. Certainly, this is the correct and accurate text.


Editor’s Note: The idea that being elderly would disqualify someone from being a judge was a new concept for me. Being married and having children is a requirement. It seems, based on this Gemora, that a certain requirement for retirement beyond a certain age is also appropriate.

Parshat במדבר Bamidbar 1:51 – Who Is a Stranger?

Bamidbar 1:51 – When the Tabernacle is set to travel, the Levites shall dismantle it; and when the Tabernacle camps, the Levites shall erect it; any outsider [non Levite] who approaches shall be put to death.

Gemora Shabbos 31a – A non-Jew asked Hillel, “Who does this verse refer to? Hillel responded: Even to King David”

Torah Temimah Colloquial Translation on Note #2:

The Gemora here mentions this story as a continuation of the story of the non-Jew who approached Hillel and asked to be converted on the condition that he be appointed as the High Priest. Hillel responded, “first go and learn the whole Torah.”

The non-Jew went and studied and when he reached this verse he asked what type of ‘stranger’ the verse is referring to. Hillel responded that this law regarding non-Levites [a type of hereditary priesthood] applies even to King David.

The reason for Hillel’s mentioning King David is multi-fold. First of all, perhaps this is an allusion to the Gemora Kritot (6b) where it discussed the verse in Ki Tissa regarding forbidding ‘strangers’ from deriving benefit from the anointing oil in the temple. In that particular situation the word ‘stranger’ does not apply to a King because, actually, a King is one of the people who is anointed with that oil. Nevertheless, here, however, Hillel wanted to emphasize that the word ‘stranger’ would apply to any non-Priest.

An additional reason for mentioning King David is because of the fact that King David is descended from converts [from Ruth the Moabite]. Even though it is well known that converts are especially beloved before God and even though he is King, still this verse’s severe punishment for a stranger applies even to him. Therefore, the implication is that Hillel was obliquely telling the convert that he has no chance of becoming High Priest [but that this doesn’t indicate that he is any less beloved or of a low stature.]

It is also possible that Hillel decision to choose King David as an example is a reference to the verse in Chronicles (15:2) “Thus said David that only the Levites will carry the Ark of the Lord because God has specifically chosen them for this task…”

Thus we see that King David himself was aware not to participate in a service that had been assigned to the Levites and certainly would have not desired to participate in a service assigned to the High Priest.

Editor’s Note: The idea that the law forbids someone who is not descended from the Cohanim to officiate in the temple is not meant to be an insult or any lack of stature for the non-Priest. In fact, the Torah teaches that there are 3 crowns: the crown of Priesthood, the crown of Kingship and the crown of Torah; the crown of Torah being the greatest one of all.

Additionally, for me, the message is that we are all strangers, in one way or another.

Parshat שפטים  – Deuteronomy – 17:1 – Can a Murderer Bless Others?

Deuteronomy:17:1 – You shall not sacrifice to the Lord, your God, an ox or a sheep that has in it a blemish or any bad thing, for that is an abomination to the Lord, your God.

Sifri: We learn in a beraisa that Rabbi Shimon said: One might think that just as an ox or a sheep become invalid for being used as a sacrifice if it was used for immoral sexual relations, so too a Cohen would become invalid. However, since the verse states “it is an abomination to the Lord” we see that the animal becomes invalid but not a Cohen.

Coloquial translation of Note 6:

See also the Mishna in Bechoros (7:7) where it lists reasons why an animal would become invalid yet would not apply to a Cohen. In the list, it includes animals that were used for sexual immorality and also animals that killed a person. The Tosfot Yom Tov states that in some editions of the Mishna it excludes the phrase “that were used for sexual immorality and also that killed a person”. The Tosfot Yom Tov states this because of what it says in the Gemora Bechoros (32a) that Rabbi Yochanan states that a Cohen who has killed someone is forbidden to participate in the communal blessing ceremony. A logical deduction would be that he is also forbidden from participating in the service in the temple when it was standing. This is also true of a Cohen who committed sexually immoral acts.

However, the Sifri explicitly disproves his comments. The Sifri state that a Cohen who commits sexually immoral acts would still be allowed to participate in the communal blessing ceremony. Further, the Tosfot Yom Tov’s observation that it would be a logical deduction to ban such a Cohen from the temple service would only be a [optional] stringency not the strict letter of the law.

In Numbers (6:27) regarding the verse “and I will bless them”, I show that the Jerusalem Talmud Gittin (5:8) explicitly states that a Cohen who has committed sexually immoral acts or who has killed someone is permitted to participate in the communal blessing ceremony.

Translator’s Note: Not only does the Torah Temimah mention his view on this once, he mentions it twice; once in Numbers (6:27) and once here. I think this indicates that he feels very strongly about this issue.


Parshat נשא Bamidbar 6:27 – Can a Murderer Be One Who Blesses?

Numbers 6:27 – They shall bestow My Name upon the children of Israel, so that I will bless them.

Jerusalem Talmud, Gittin Chapter 5, Halacha 8: “From which verse do we know that a person should not say ‘this man is immoral or is a murderer and yet he is blessing me?’ God says ‘Who is it who is blessing you? It is Me, God, who is blessing you’. This is shown by our verse in the phrase ‘so that I will bless them.’”

Torah Temimah Colloquial Translation on Note #159:

Contrast this Gemora in the Jerusalem Talmud with the Gemora Berachos in the Babylonian Talmud (32b) where it states “Rabbi Yochanan states that any Cohen who has killed a person cannot participate and offer blessings in the communal blessing ceremony. This is proven by the verse in Isaiah (1:15) ‘And when you spread out your hands, I will hide My eyes from you…your hands are full of blood. Wash, cleanse yourselves, remove the evil of your deeds from before My eyes, cease to do evil.’”

Apparently, this section of the Babylonian Talmud disagrees with the above section in the Jerusalem Talmud.  The Beis Yosef explains this apparent contradiction by stating that the opinion in the Jerusalem Talmud (permitting participation by a Cohen who had killed someone) as dealing with the case where there is only a suspicion of the Cohen’s guilt. People in the community were suspecting that he was guilty. Therefore, the Gemora teaches that a suspicion of guilt is not enough to remove a person’s presumption of innocence. The Rambam agrees with this reasoning. To me, however, this does not appear to be a good explanation of the different opinions in the two Gemoras since it assumes that the Jerusalem Gemora is dealing with a situation that is actually not explicitly stated there.

Rather, it is possible to follow instead the opinion of the Tosafot in Sanhedrin (35b) who state that the Babylonian Talmud (forbidding a participation by a Cohen who had killed someone) is actually stating a stringency that is not the core legal opinion.

Alternatively, one can say that the lenient opinion of the Jerusalem Talmud is due to the fact that it is dealing with a case where the Cohen has repented. The would explain the specific phraseology used in the Talmud there. However, the Rambam in Chapter 15:3 of the Laws of Prayers stretches to say that even if a Cohen had repented, he still cannot participate and offer the communal blessings. He quotes the above verse from Isaiah to support this view. To me, this view is very astounding. Doesn’t the verse immediately follow with the advice: “Wash, cleanse yourselves, remove the evil of your deeds from before My eyes, cease to do evil.”?  This verse shows that repentance does, in fact, help and would make a difference.

See also Tosfot Yom Tov (7:7) in Bechoros where it lists the various types of people who are permitted to participate and offer the communal blessings. He bases his opinion on the words of Rabbi Yochanan in the Babylonian Talmud without quoting at all the Jerusalem Talmud nor the Tosafot that I mention above nor the Beis Yosef. See also my comments in Devarim 17:1, Note 6.

Editor’s Note: Here the Torah Temimah is explaining to us the sources for his opinion that a murderer who has repented may participate and offer God’s blessings in the communal blessing ceremony.


Parshat  תזריע Leviticus 12:4 – Are Women Allowed to Go to Synagogue?

Leviticus 12:4 – And for thirty three days, she shall remain in the blood of purity; she shall not touch anything holy, nor may she enter the Sanctuary, until the days of her purification have been completed.

Gemora Shavuot 17b: A ritually impure person who enters [the Sanctuary] through the roof is exempt. This is proved by the verse that states ‘one may not enter’. The verse thus teaches that if one enters the usual way one is liable but not if one enters in any other way.

Torah Temimah Colloquial Translation on Note #35:

Tosafot write if one enters via the roof, one is not liable because the roof of the Sanctuary does not have the category of “holy”.  Even though the Gemora Pesachim 85b states that the steps of the Sanctuary are holy, one must conclude that only the steps [which are also technically outside the Sanctuary} are holy but not the roof.

Know that what [some] Acharonim [see the Orach Chaim-Section 88] write that it is forbidden for a menstruating woman to go to synagogue because our synagogues are in the place of the Temple [in Jerusalem], requires further investigation. If this were actually the law, then women would never be able to attend synagogue. Since a woman who gave birth once would be lacking the necessary temple-sacrifice necessary to achieve the purity level of being able to enter the Sanctuary. Note that our verse specifically applies to a woman who is ritually impure due to giving birth and is ritually pure except for the fact that she hasn’t yet brought the temple-sacrifice atonement offering.

Additionally, [if menstruating women were not allowed to attend synagogue] it would be unclear how men [who are also impure due to seminal emissions] would be allowed to attend.

Therefore, one must conclude that the core law is in accordance with Rashi’s Sefer HaPardes which states that women are permitted to attend synagogue at all times. Further, the comparison of our synagogues to the Holy Temple is meant [only] exegetically and as a teaching point, but not for the purposes of deriving law. There are many additional proofs for this, but here is not the place to record them.

Further notes from the Commentary “Meshivas Nefesh” on the Torah Temimah: The Rambam writes in The Laws of the Sefer Torah Chapter 10, Section 8 as follows:

‘Anyone who is ritually impure even menstruating women, or non-Jews, are permitted to hold the Sefer Torah and read from it. This is because words of Torah are not capable of being made impure. As long as one’s hands are clean and don’t have dirt on them, but rather one washes one’s hands first and then holds the Sefer Torah [it is permitted].’

Editor’s note: In this note, the Torah Temimah again deviates from explaining the text  to make a point regarding women’s participation in religious life.


Parshat כי תשא  Exodus 30:13 – Are Women Obligated To Give Half Shekel Before Purim?

Exodus 30:13 – This they shall give, everyone who goes through the counting: half a shekel according to the holy shekel. Twenty gerahs equal one shekel; half of [such] a shekel shall be an offering to the Lord.

Jerusalem Gemora Shekalim Chapter 2, Halacha 3 – Rabbi Nehemiah said in the name of Rabbi Yochanan ben Zakai “Because they transgressed the ten commandments, that is the reason why everyone needs to give ten gerahs”.

Torah Temimah Colloquial Translation Note #24:

Rabbi Yochanan ben Zakai’s explanation is meant to explain the overall reason for the commandment to give a half a shekel. On the other hand, the prior comments of Rabbi Yehuda and Rabbi Nehemiah  were meant only to state why “half” a shekel needed to be given rather than a whole shekel. [Editor’s note: Check out the Torah Temimah’s comment on note 23.] Otherwise, one could ask on their explanations why Levites must also donate half a shekel since the Levites didn’t participate in the transgression of the Golden Calf. Rather, the reason for the giving of the money is so that there would be money to pay for the communal sacrifices each year as the verse states “to atone for their sins” – since that is the function of the sacrifices.

It is important to note that the custom in our day to give half a shekel in charity before the holiday of Purim is hinted at in our verse here. This is in accordance with that which is stated in Gemora Megilah 13b as follows “it was known to God [at the time this commandment was given] that in the future Haman would weigh plans [shkalim] against the Jews. There God preceded His shkalim to Haman’s shkalim.” Also look at the Shulchan Aruch Orach Chaim section 694 and in the Magen Avraham where they express surprise in the Maimonidean Notes that women and children are also obligated to give half a shekel before Purim. They are surprised at this because in the half a shekel mentioned in the Torah they are exempt.

In my opinion the issue is clear: in the Scriptural half a shekel the purpose was the take a census. Since women and children were not counted as part of the census, they were exempt at that time. This is not the case in the requirement to give half a shekel before Purim. This commandment is in remembrance of the miracle of Purim. Since women and children were included in that miracle, they are also obligated in the requirement to give half a shekel before Purim.

Editor’s Note: In this note, the Torah Temimah again emphasizes women’s mitzvah obligations against other authorities stating a lesser level of obligation.


Parshat בשלח Shmos 17: 9 – The Nations of the World

Exodus 17:9 – And Moshe said to Yehoshua, select for us men and go out and fight against Amalek tomorrow; I will stand on the top of the hill with the Staff of God in my hand.

Mechilta: Moshe did not say “select for me” but rather “select for us”. From here we see that a student is as dear to a teacher as himself.

Torah Temimah Colloquial Translation on Note #5:

In Pirkei Avot (2:10) the phraseology is:” the honor of your friend should be as precious to you as your own”. Others have the text saying “the honor of your student should be as precious to you as your own”. From the Mechilta quoted above, it seems to be that the appropriate text in Pirkei Avot is: “the honor of your student”. Besides, it also says in Pirkei Avot (4:12) “the honor of your friend should be as precious to you as the honor of your teacher.” And also in the Mechilta here it separately and specifically addresses the issue of the “honor” of your friend. Additionally, please reference the Tosfot Yom Tov there and note that he, apparently, had not seen this Mechilta.

Note that the reason why Moshe assigned the task of fighting against Amalek to Yehoshua is mentioned is Pesikta Rabati and in the Midrash Raba here as follows: Why did Moshe assign this task to Yehoshua? Moshe said to him, “Your ancestor (Yosef) said “I fear God” (in parshat MiKetz). About Amalek on the other hand it is written (in parshat Ki Tetzei) “he does not fear God”. Let the descendent of the one who said “I fear God” fight against the descendent of the one who said “he doesn’t fear God”.

This aggada needs explaining. Do we not already know that Yosef feared God from other places besides where he makes the statement about himself? Are weren’t his brothers, who did not make this statement about themselves, also people who feared God? In what way exactly was Yosef’s level of fear of God higher than his brothers, [if any]?

Another amazing point about this midrash is that it is attributing Amalek’s principle sin to the fact that he was not a tribe that feared God!? Where do we find the phrase “feared God” as a description of other  non-Jews? In particular, we do find this phrase used for exceptional, special people such as Abraham (“Now I know that you fear God”) and Ovadiyahu (Kings I, Chapter 11) and Job (Chapter 1).

Therefore, it appears appropriate to conclude that this is exactly what the Mechilta is coming to teach; that non-Jews should also be people who fear God. It is incumbent upon them also and if they do not they are also liable for punishment. The proof of this is exactly from the story of Yosef when he says to his brother “I fear God”. Yosef says this while he was pretending to be an Egyptian. If it were not true that non-Jews also fear God, how could Yosef have said such a thing without giving away that he was of the tribe of Israel?

What we learn from Yosef’s saying this about himself is that it is expected that non-Jews also be people who fear God. Also we see that Amalek is liable for punishment since he says of himself that he does not fear God.

So from here we can conclude that it is perfectly appropriate for the descendent of one who said “I fear God” to be the one who fights against Amalek. It was exactly because without Yosef’s having said this, I would not have known a source for this principle that the nations of the world are [equally] liable and responsible for fulfilling the commandment to fear God.

DBS Note: I think the Torah Temimah chose this Mechilta because it points out that Jews and non-Jews are both obligated to fear God and equally capable in this regard. This viewpoint is not commonly expressed. Also, notice that the Mechilta that was selected really has nothing to do with explaining the posuk. Again, the Torah Temimah is going out of his way to teach us something from Jewish tradition vis-a-vis non-Jews that is not commonly taught.

Parshat מסעי Bamidbar 35:12 – The Rule of Law

Numbers 35:12 – These cities shall serve you as a refuge from an avenger, so that the murderer shall not die until he stands in judgment before the congregation.

Gemora Makot 8b – We learn in a beraitha that Rabbi Akiva said, “From which verse do we know that if judges in a court should see a person kill another person, they must hand the accused over to a different court for judgement? The answer is from the verse that states “until he stands in judgement”. This verse implies ‘until he stands in judgement before a different court’”.

Torah Temimah Colloquial Translation on Note #17:

It is possible to say that this beraitha is the same beraitha that is mentioned with slightly different phraseology in a variety of places in the Gemora. That beraitha reads as follows: “[if] a court sees a person kill aonther person, all of the judges become [instead] witnesses…and a witness is not able to be a judge [in a given court case.]

So according to our beraitha, this ruling is a “decree from above” and is dictated in writing by the verse above. If this is so, then the logical explanation that ‘a witness cannot be a judge in the same case’ is merely stated as giving a logical reason for the heavenly decree.

Note that in Gemora Rosh HaShannah 27a, the reason is given for Rabbi Akiva’s opinion from another set of verses in Numbers 35 (24-25) where it states “…and they will judge the one who smote…and they will save him from the avenger…”. From the juxtaposition of those verses, the Gemora concludes that it is the obligation of the judges to seek ways to find a person innocent. However, in the case where the judges actually saw the person commit the murder, they would be incapable of seeing any reason to find him innocent.

Thus, it would result from this discussion that there are two reasons why a court that witnesses a murder must turn the accused over to a different court. 1. Witnesses cannot also be judges 2.  If they were judges they would not be in a position to find or seek any reason to find the person innocent. However, since a law cannot have two sources, the principle source for this law is from our verse which states that it is a “decree from above”. The reason for this decree would then be that a witness cannot also be a judge. The reason for this would be the verse ahead (35:24) alluding to the idea that the judges must seek reasons for finding the person innocent. The Tosafot in Rosh Hashanah on this section of Gemora strive to reconcile these various, different sources. However, according to the way we explain it above, the answers to these questions are clear.

Look also in the Rambam in Chapter 1, Halacha 5 regarding the laws of a murderer. There he writes that a murderer may not be executed by the witnesses until he is brought before a court [and they try him according to the rule of law].  The Rambam then cites our verse above as support. The Kesef Mishah (a famous commentary on the Rambam) then brings support for the Rambam’s position. We, however, mention in our previous note, that the Kesef Mishna’s opinions are difficult to defend.

It is more appropriate to state that the Rambam was focusing on the our beraitha. It is somewhat difficult to understand why the Rambam did not precisely quote the law as stated in the beraitha that we have quoted per the Gemora in Sanhedrin that the witnesses/judges will need to bring him before a different court. Perhaps one can say that the Rambam was focusing on the idea mentioned by Rabbi Akiva that a witness cannot become a judge. This concept, however, is mentioned by the Rambam in the laws of witnesses in Chapter 5, Halacha 8.

Notice also that the point that the Rambam makes that our verse is the source for the law that it is forbidden for the witnesses to execute the murderer before he is tried [according to the rule of law] in a court can be explained. Behold, even though this case is only discussed in Gemora Sanhedrim [which does not quote our verse], however, it is obvious the logic applied here is a fortiori . [If judges who see a murder are not allowed to take the law into their own hands, how much more so would this be true of two ordinary individuals who see a murder committed.) The Rambam often relies on a particular verse to support a clear, simple law even though the Gemora does not explain that verse in exactly the same way. We have explained this several times in our commentary. See in particular, the note in Parshat Shmini, Chapter 10, verse 6.

Editor’s Note: The idea that religious judges who, themselves, witness a murder cannot be judges in that particular case is, I think, an important idea for our times. Religious judges who have no limit to their power is extremely ill-advised.

Parshat וישלח – Genesis 35:22 – Regarding Reuben’s Possible Sin and Question and Answer on a Gemora

Genesis:  35:22 – And it came to pass when Israel sojourned in that land, that Reuben went and lay with Bilhah, his father’s concubine, and Israel heard [of it], and so, the sons of Jacob were twelve.

Gemora Shabbat – 55b – Rabbi Shmuel bar Nachmani said in the name of Rabbi Yonatan: Anyone who says that Reuven sinned is completed in totally mistaken. This is shown in the verse itself when it states that the sons of Jacob were twelve. This phrase means that the brothers were all equal to each other.

Torah Temimah Colloquial Translation on Note #16:

Regarding the apparent contradiction of Rabbi Shmuel bar Nachmani statement and the plain meaning of the verse, I already commented in the previous note.

Further, the phrase “is completely mistaken” informs us that one who says that Reuben sinned makes an error. However, there is no prohibition or punishment for making such a statement.

Even though we have a general principle that “one who tells over the very intimate matters of a scholar will suffer purgatory”, one must say that this does not apply to Reuben since the Torah itself does not cover up it up. Rather the Torah describes the event in a manner that would indicate a sin. Also, there is an opinion that there was an actual sin. Therefore, Rabbi Shmuel says only that one is mistaken in explaining this matter, but nothing more than that.

[On a separate matter], it is appropriate to comment on verse 20 where it states that Jacob built a monument to mark Rachel’s grave. Yet in the Gemora, in Moed Katan 5a, there is an extensive discussion regarding whether marking graves is a rabbinic decree or whether its source is from the Torah. It is astounding that in the discussion this verse is not mentioned showing that in the Torah, Jacob built a monument at Rachel’s grave. Further, in Midrash Rabba, this monument is explicitly described as a marker.

Nor would it be accurate to say that we do not learn halachos from the Torah prior to the Giving at Mount Sinai. We already know that we derive many matters from the conduct of our forefathers [Abraham, Isaac and Jacob]. For example, we derive the times for prayer, the seven days of mourning and various other matters. The difficulty is further emphasized by the fact that in Gemora Nidda 57a, the conclusion is reached that marking graves is actually a rabbinic law. There also it does not mention our verse.

A possible answer is that in these sections of the Gemora, the sages are trying to find the source of marking graves not only in the case where there is a burial of a complete, known person, but also even where there is just a limb or a single bone.  This would include a situation where it is not known who the dead person was. Even in such a case, the law is that a marker should be put up in order to mark the place and for people to avoid ritual impurity. The source for this law is not from our verse. [The rabbis concluded that this law is a rabbinic decree.] Indeed we find that this whole section of the Gemora deals with ritual impurity.]  Consequently, it makes sense that the rabbis found a source for this law from the verse in Ezekiel 39:15: “And when they that pass through shall pass and see a human bone, they shall build a sign next to it until the buriers bury it in the Valley of Hamon Gog.“ This verse would apply even to a single bone. See also what is explained in the verse in Exodus 18:20 “…and you shall make known to them the way they shall go…”

See also what it says in Jerusalem Talmud Tractate Shekalim 2:5 where is states as follows: “Rabbi Shimon Ben Gamliel said ‘one does not build a monuments for righteous people because their deeds are their remembrance.’”  Apparently this contradicts the verse where Jacob built a monument for Rachel. Further we find that, in fact, we do build monuments for righteous people who have died. See also Midrash Rabba where this same general principle of not building monuments for the righteous is mentioned. Also there it does not address this apparent contradiction. Some have written that this general principle was only the opinion of an individual person and we do not follow this ruling.

In my opinion, however, we don’t need to state that perhaps it is only a single person’s opinion. Rather, it is possible that the intent of this general principle is to state that if the intent of the monument is so that people will remember the name of the righteous person and his greatness, then truly there is not need for such a monument. It is the righteous person’s words and deeds that are their memorial. If, however, the intent of the memorial is for those who are still alive so that they will know the place of his[/her] physical burial so that they may go there to says prayers at a propitious time or so that they may go there to ask for forgiveness from him/her for any wrong that they may have done to him/her. This would be similar to what is written in Tractate Chagiga 22b: “Rabbi Yehoshua went and prostrated himself at the graves of the House of Shammai and said, I crave your pardon, bones of Beth Shammai. If your unexplained teachings are so [excellent], how much more so the explained teachings.’”  In the intent of marking the grave is for these types of purposes, certainly this is done. Thus, we can understand why Jacob built a monument for Rachel. Jacob saw through the divine spirit that in the future travelers on the way to exile would pass through the place where she was buried so Jacob built a memorial there so that they would see it and pray there.

 The important distinction is whether the memorial is being built for the deceased person or for the living.  Therefore, one can say that one who commands [in his will, etc.] that no monument be erected for him, then this distinction would be pertinent. If the monument is, essentially, for the deceased person then one would have to comply with his command that no monument be built.

This is similar to the teaching in Tractate Sanhedrin 46b where it discusses the situation of one who has commanded that there be no eulogy. There, in the discussion, it mentions that if the purpose of the eulogy is for the deceased person, then one must comply with his command.  If, on the other hand, the eulogy is for the sake of the living, then then there is no obligation to comply.

So too we find a case where the inheritors would be called upon to pay for something for the honor of the deceased.  Let us say, for example, the deceased was not so profoundly righteous that his deeds by themselves would be ample honor for him. This person set forth in his will that the family should erect some monument in his memory.  If this monument is for his personal honor, his benefit,  the inheritors must pay for it, as they must give honor to their father.  If, however, the deceased’s request was for the family’s benefit–so that they would easily recognize his burial place–they may counter that they do not need a monument.  Perhaps they can easily find the spot, or perhaps they do not intend to visit the burial place.  In any event since the expense would be for their own benefit, they may refuse to build a monument.

Translator’s  Note: In this long note, I appreciated the observation in the beginning taking a lenient view of one who says that Reuben did, in fact, sin. The second part of this note reflects the Torah Temimah’s determination to understand and clearly explain questions that he has faced on sections in the Gemora. Thank you to Rabbi Chanoch Slatin for helping me on the part I was stuck on!