ki teitzei -- parshablog

Peshat in יָקוּם עַל שֵׁם אָחִיו הַמֵּת

Summary: While Ibn Caspi and Rashbam says it means literal naming, something not even Karaites say, I agree with the gemara in Yevamos that it certainly doesn’t mean this. I would rather call it bad peshat.

Post: In parashas Ki Seitzei, towards the end:

5. If brothers reside together, and one of them dies having no son, the dead man’s wife shall not marry an outsider. [Rather,] her husband’s brother shall be intimate with her, making her a wife for himself, thus performing the obligation of a husband’s brother with her. ה. כִּי יֵשְׁבוּ אַחִים יַחְדָּו וּמֵת אַחַד מֵהֶם וּבֵן אֵין לוֹ לֹא תִהְיֶה אֵשֶׁת הַמֵּת הַחוּצָה לְאִישׁ זָר יְבָמָהּ יָבֹא עָלֶיהָ וּלְקָחָהּ לוֹ לְאִשָּׁה וְיִבְּמָהּ: 6. And it will be, that the eldest brother [who performs the levirate marriage, if] she [can] bear will succeed in the name of his deceased brother, so that his [the deceased brother’s] name shall not be obliterated from Israel. ו. וְהָיָה הַבְּכוֹר אֲשֶׁר תֵּלֵד יָקוּם עַל שֵׁם אָחִיו הַמֵּת וְלֹא יִמָּחֶה שְׁמוֹ מִיִּשְׂרָאֵל:

What does it mean to “succeed in the name”? I would caution against taking this literally. Too many people confuse “peshat” with “the simplest, literal meaning.” But that is not the case. People often employ idioms in their language. I say “I took a shower this morning” but that does not imply that one is now missing. The Torah speaks about “the souls which they made in Charan” but that does not imply that they used sefer Yetzirah to create golems or that they converted people to monotheism. On the contrary, the peshat there is likely that they acquired these as servants.

So while this pasuk may indicate that one is to name the child the same name as the father, this need not be the only possible interpretation. I would ask whether naming the child the same name as the brother really accomplishes much. The point, after all, is that וְלֹא יִמָּחֶה שְׁמוֹ מִיִּשְׂרָאֵל, “his [the deceased brother’s] name shall not be obliterated from Israel”. Let us say for a moment that the brother had not died. He wouldn’t name his child after his own name. Yaakov did not name any of his children Yaakov, and indeed, from those listed who left Egypt, we don’t really find any Yaakovs. Does that mean that if people did not ever name any son Yaakov, Yaakov’s name would be obliterated?

One could answer that by the child taking the literal name of the deceased brother, since that child will have children of his own, they will recall their ancestor Ploni. But this is a different Ploni. And why bother with the marrying of the deceased brother’s wife? Let the living brother simply name one of his children Ploni! There are possible answers on can offer, but these are difficulties which require teirutzim.

A straightforward interpretation which does not require any great kvetch is that al shem achiv hameis means that they are ascribed, attributed, to the deceased brother. It is from the deceased brother’s wife, and the living brother is stepping in for the deceased brother, and so it is as if he fathered the child.Al shem is like lesheim mitzvas matzah, “for the sake of the mitzvah of matzah.”

If the child carries on the “name”, he is carrying it on as the bearer of the deceased brother’s lineage. This would naturally also carry with it rights of inheritance, of that brother’s portion of the estate. Indeed, shem may be translated as “title”.

We must take care not to insert our own suppositions into the Biblical text, but should glean whatever we can from Biblical usage. Now, this is not necessarily provable from the Biblical text. But there are three proofs one might be able to bring.  One is from Yaakov’s blessing to Ephraim and Menashe:

5. And now, [as for] your two sons, who were born to you in the land of Egypt, until I came to you, to the land of Egypt they are mine. Ephraim and Manasseh shall be mine like Reuben and Simeon. ה. וְעַתָּה שְׁנֵי בָנֶיךָ הַנּוֹלָדִים לְךָ בְּאֶרֶץ מִצְרַיִם עַד בֹּאִי אֵלֶיךָ מִצְרַיְמָה לִי הֵם אֶפְרַיִם וּמְנַשֶּׁה כִּרְאוּבֵן וְשִׁמְעוֹן יִהְיוּ לִי: 6. But your children, if you beget [any] after them, shall be yours; by their brothers’ names they shall be called in their inheritance. ו. וּמוֹלַדְתְּךָ אֲשֶׁר הוֹלַדְתָּ אַחֲרֵיהֶם לְךָ יִהְיוּ עַל שֵׁם אֲחֵיהֶם יִקָּרְאוּ בְּנַחֲלָתָם:

The phrase עַל שֵׁם אֲחֵיהֶם is used in terms of inheritance. Ephraim and Menashe count as shevatim, and thus there is a double portion. But any subsequent children born to Yaakov will be part of the Yosef := Ephraim Menashe line. This does not mean that every subsequent child of Yosef was expected to be called Ephraim or Menashe. That would be just silly.

The other proof is from actual cases of yibbum. For example, Tamar:

8. So Judah said to Onan, “Come to your brother’s wife and perform the rite of the levirate, and raise up progeny for your brother.” ח. וַיֹּאמֶר יְהוּדָה לְאוֹנָן בֹּא אֶל אֵשֶׁת אָחִיךָ וְיַבֵּם אֹתָהּ וְהָקֵם זֶרַע לְאָחִיךָ: and raise up progeny: The son shall be called by the name of the deceased. [From Targum Jonathan ben Uzziel] והקם זרע: הבן יקרא על שם המת: Rashi does not mean this in the literal sense, but in the same sense it is used elsewhere, that it will be attributed. Yehuda’s children from Tamar are not called Er and Onan, but rather Peretz and Zarach. Admittedly, the word shem is not mentioned here, but the same cultural values and cultural institution is in play.

Finally, in sefer Rut, we read:

ה  וַיֹּאמֶר בֹּעַז, בְּיוֹם-קְנוֹתְךָ הַשָּׂדֶה מִיַּד נָעֳמִי; וּמֵאֵת רוּת הַמּוֹאֲבִיָּה אֵשֶׁת-הַמֵּת, קניתי (קָנִיתָ)—לְהָקִים שֵׁם-הַמֵּת, עַל-נַחֲלָתוֹ. 5 Then said Boaz: ‘What day thou buyest the field of the hand of Naomi—hast thou also bought of Ruth the Moabitess, the wife of the dead, to raise up the name of the dead upon his inheritance?’

Here the identical phrase is used, and it is his name upon his inheritance. And then a bit later: י  וְגַם אֶת-רוּת הַמֹּאֲבִיָּה אֵשֶׁת מַחְלוֹן קָנִיתִי לִי לְאִשָּׁה, לְהָקִים שֵׁם-הַמֵּת עַל-נַחֲלָתוֹ, וְלֹא-יִכָּרֵת שֵׁם-הַמֵּת מֵעִם אֶחָיו, וּמִשַּׁעַר מְקוֹמוֹ:  עֵדִים אַתֶּם, הַיּוֹם. 10 Moreover Ruth the Moabitess, the wife of Mahlon, have I acquired to be my wife, to raise up the name of the dead upon his inheritance, that the name of the dead be not cut off from among his brethren, and from the gate of his place; ye are witnesses this day.’

As Rashi explains:

to preserve the name of the deceased on his heritage: Since his wife comes and goes on the estate and brings in and takes out, people say, “This is Mahlon’s wife,” and his name is remembered upon it.

But we need not resort to this. Rather, he takes her as a wife to bear the child, who will be ascribed to the deceased relative.

We should point out that the child is called Oved, not Machlon or Kilyon! As we read:

יז  וַתִּקְרֶאנָה לוֹ הַשְּׁכֵנוֹת שֵׁם לֵאמֹר, יֻלַּד-בֵּן לְנָעֳמִי; וַתִּקְרֶאנָה שְׁמוֹ עוֹבֵד, הוּא אֲבִי-יִשַׁי אֲבִי דָוִד.  {פ} 17 And the women her neighbours gave it a name, saying: ‘There is a son born to Naomi’; and they called his name Obed; he is the father of Jesse, the father of David. {P} 

and: כא  וְשַׂלְמוֹן הוֹלִיד אֶת-בֹּעַז, וּבֹעַז הוֹלִיד אֶת-עוֹבֵד. 21 and Salmon begot Boaz, and Boaz begot Obed; כב  וְעֹבֵד הוֹלִיד אֶת-יִשָׁי, וְיִשַׁי הוֹלִיד אֶת-דָּוִד.  {ש} 22 and Obed begot Jesse, and Jesse begot David. {P} 

If the intent were really to name the child the same name as the deceased, they would have done so. They would not have left the naming to the women; and if it is a mere nickname, the name would not have been preserved as such in the genealogical list.

But this last is just, for me, a good indication. It was readily apparent to me from the local pesukim itself that the literal name was not intended. (If you want a literal naming, then not as a personal name, but as a family name — just like Beit Chalutz HaNaal, or mishpachat haKorchi, mishpachat haYishvi, etc. Regardless, I think yakum indicates something other than literal naming.)

Anyhow, on to the meforshim. Rashi writes:

will succeed in the name of his deceased brother:[literally,“will rise in the name of his brother.”] The one who marries his wife, is to take the share of his deceased brother’s inheritance of their father’s property [in addition to his own share]. - [Yev. 24a] יקום על שם אחיו: זה שייבם את אשתו יטול נחלת המת בנכסי אביו:

He bases himself on a gemara in Yevamos 24a. The brayta:

Our Rabbis learned: And it shall be, that the firstborn implies that the commandment of the levirate marriage devolves upon the [surviving elder brother];  that she beareth excludes a woman who is incapable of procreation, since she cannot bear children: shall succeed in the name of his brother, in respect of inheritance. You say, ‘in respect of inheritance’; perhaps it does not [mean that] but, ‘in respect of the name’: [If the deceased, for Instance, was called] Joseph [the child] shall be called Joseph; If Johanan he shall be called Johanan! — Here it is stated, shall succeed in the name of his brother and elsewhere it is stated, They shall be called after the name of their brethren in their inheritance, as the ‘name’ that was mentioned there [has reference to] inheritance, so the ‘name’ which was mentioned here [has also reference] to inheritance. That his name be not blotted out excludes a eunuch whose name is blotted out.

Thus, Tannaim considered the possibility that the pasuk should be taken hyper-literally, that the child should be called by the actual, literal name. Therefore, they bring a gezeira shava from Ephraim and Menashe, as I brought above.

I would assert this is no simple gezera shava. This is not bringing laws from one place to another, via derash, but a very peshat-oriented gezera shava which reveals Biblical usage of the the term.

Therefore, Rava continues, with one of the very few instances of the phrase ain mikra yotzei miydei peshuto:

Said Raba: Although throughout the Torah no text loses its ordinary meaning, here the gezerah shawah has come and entirely deprived the text of its ordinary meaning

I agree. Because this gezera shava is operating on the level of peshat, not on the level of derash.

I am not sure what Rashbam means. He says:

על שם [אחיו] שלפי הפשט.

The supercommentator here explains that he is arguing, on a peshat level, with the Sifrei and the gemara in Yevamot and insisting that on a peshat level that we are literally naming.

Ibn Ezra understands this as referring to nachala, just as Rashi does:

ולא ימחה שמו -על הנחלה ידבר.

Ibn Caspi says like Rashbam, a literal naming:

יקום על שם אחיו המת. שיקרא בשמו, וכן שם

בן רות נקרא על שם אישה המת, אבל השכנות קראו לו עובד (רות

: ( ד׳ י”ז), כי יעבוד את נעמי כשיגדל כמו שמבואר משם 3

He thus dismisses the proof from Rus, where the same phrase is used, claiming that this was a nickname from the neighbors. After all, the pasuk says that the neighbors called him this.

A quick note on a Karaite position on this. The Karaite scholar Aharon ben Yosef writes:

They don’t take it as inheritance, for other reasons, which I am not going to get into in this post. But they don’t take it absolutely literally, to such a silly extent, either.

My take on this is that Rashbam and Ibn Caspi are wrong, on the level of peshat. They took the pasuk too literally.

Ki Teizei: Could Bilaam’s curse or blessing harm or help?

Summary: According to Ibn Caspi, no. This was catering to the superstitions of the hamon am.

Post: In the middle of Ki Teitzei, we read:

4. An Ammonite or Moabite shall not enter the assembly of the Lord; even the tenth generation shall never enter the assembly of the Lord. ד. לֹא יָבֹא עַמּוֹנִי וּמוֹאָבִי בִּקְהַל יְ־הֹוָ־ה גַּם דּוֹר עֲשִׂירִי לֹא יָבֹא לָהֶם בִּקְהַל יְ־הֹוָ־ה עַד עוֹלָם: 5. Because they did not greet you with bread and water on the way, when you left Egypt, and because he [the people of Moab] hired Balaam the son of Beor from Pethor in Aram Naharaim against you, to curse you. ה. עַל דְּבַר אֲשֶׁר לֹא קִדְּמוּ אֶתְכֶם בַּלֶּחֶם וּבַמַּיִם בַּדֶּרֶךְ בְּצֵאתְכֶם מִמִּצְרָיִם וַאֲשֶׁר שָׂכַר עָלֶיךָ אֶת בִּלְעָם בֶּן בְּעוֹר מִפְּתוֹר אֲרַם נַהֲרַיִם לְקַלְלֶךָּ: 6. But the Lord, your God, did not want to listen to Balaam. So the Lord, your God, transformed the curse into a blessing for you, because the Lord, your God, loves you. ו. וְלֹא אָבָה יְ־הֹוָ־ה אֱלֹהֶיךָ לִשְׁמֹעַ אֶל בִּלְעָם וַיַּהֲפֹךְ יְ־הֹוָ־ה אֱלֹהֶיךָ לְּךָ אֶת הַקְּלָלָה לִבְרָכָה כִּי אֲהֵבְךָ ה אֱלֹהֶיךָ: 7. You shall not ever seek out their welfare or their good, all your days. ז. לֹא תִדְרֹשׁ שְׁלֹמָם וְטֹבָתָם כָּל יָמֶיךָ לְעוֹלָם:This seems to ascribe some sort of reality, and efficacy, to Bilaam’s potential curse, and to his actual blessing. But if Hashem is in control of the fate of the Jewish people, why should any curse have impact? For example, Hashem would decide whether they won any given battle. Why hold this grudge against Moav for attempting some superstitious thing which would not work, and why did Hashem transform the curse into blessing because of His love for us?

Ibn Caspi explains that Hashem was catering to the ignorance and superstition of the masses:

כִּי אֲהֵבְךָ ה אֱלֹהֶיךָ  — אין בקללת בלעם ולא בברכתו ממש על דרך האמת, אמנם המון ישראל אז לסכלותם היו נמשכים כי יש

ממש גדול בדבריו אם לרעה אה לטובה, לכן שמרם השם מהזק על

ידו, אף היטיב להם כי ברכם:

“There was not  in Bilaam’s curse nor his blessing any substance, by way of truth. However, the {uneducated} masses of Israel at that time, in their foolishness, were drawn into believing that there was great substance to his words, either to bad or good. Therefore, Hashem protected them from ‘damage’ via his actions, and even made it better for them, for he {=Bilaam} blessed them.”

Ibn Caspi does not use the term of dibra Torah kilshon benei adam here, but it is a similar idea. Not just in narrative but in direct address, they are spoken to as if things which are not true are indeed true. For previous instances of this approach, see Ibn Caspi and the Magic Trumpets and Hashem testing you with false signs.

Ibn Caspi, that Edom is not Rome or Christianity

Summary: Offered in defense of the practice of lending for interest to local non-Jews, he asserts that even if achicha does extend to Edom, they are not Edom. This has implications for all these modern predictors of the apocalypse who take as a given that Rome, or Christianity, or the US, is Edom.

Post: I already had a post on this topic, on parashat Toledot, where Shadal said this, that Edom is not the same as Rome or Christianity. Now, on parashat Ki Teitzei, we have more or less the same from a Rishon, Ibn Caspi. The pesukim, in Devarim 23:20-21, read as follows:

כ  לֹא-תַשִּׁיךְ לְאָחִיךָ, נֶשֶׁךְ כֶּסֶף נֶשֶׁךְ אֹכֶל:  נֶשֶׁךְ, כָּל-דָּבָר אֲשֶׁר יִשָּׁךְ. 20 Thou shalt not lend upon interest to thy brother: interest of money, interest of victuals, interest of any thing that is lent upon interest. כא  לַנָּכְרִי תַשִּׁיךְ, וּלְאָחִיךָ לֹא תַשִּׁיךְ—לְמַעַן יְבָרֶכְךָ יְהוָה אֱלֹהֶיךָ, בְּכֹל מִשְׁלַח יָדֶךָ, עַל-הָאָרֶץ, אֲשֶׁר-אַתָּה בָא-שָׁמָּה לְרִשְׁתָּהּ.  {ס} 21 Unto a foreigner thou mayest lend upon interest; but unto thy brother thou shalt not lend upon interest; that the LORD thy God may bless thee in all that thou puttest thy hand unto, in the land whither thou goest in to possess it. {S} 

Note the contrast between לְאָחִיךָ and לַנָּכְרִי. Ibn Caspi writes:

לא תשיך לאחיך. כבר קדם לגו כי האח כמו מין בהגיון, ולכן יש ממנו קרוב ויש ממנו רחוק, ונכרי ממאמר המצטרף לכן באמרו לאחיך, אין לנו דבר הכרחי יכריחנו על כל פנים, שלא יכנס תתתיו אדמי, מצד מה שקדם כי אחיך חוא (פסוק ח׳), ואם היא אח רחוק רחוק, רק שיותר נאות כי אמרו בכל התורה אח בסתם , יהיה על  ישראלי שהוא הקרוב וכן רעך , ויקרא זולתו נכרי, ואיך שיהיה אין לטעון עלינו בהלוותינו לרבית בארץ הזאת , כי אדום כבר נמחה שמו וזכרו על יד נבוכד נצר, ואם שבו צד מצרים וזולתם, אדום לא שב, כמו שפרש ישעיה שהפליג בספור תרבנו מדור לדור תחרב לנצח נצחים וגו׳ (ישעיה ל״ר י’) יעוין

שמה, לכן מהיום ההוא והנה לא נמצא אדומי רק שנים ׳ושלשה מפוזרים

אנה ואנה סביבות הר שעיר, שהוא קרוב לארץ ישראל, ומה מאד

יתעה המוננו וזולתנו שיחשבו כי בני הארץ הזאת הם אדומים , והנה בימי נבוכדנצר ולפניו ימים אין מספר הארץ הזאת היתה מיושבת כמו שהיא עתה, וזאת חלוקת בני יפת הנזכרת באלה תולדות נח וכן כתב יוסיפון בספרו, והנה רומי מארצנו זאת

הם כתים ודודנים, ומה יחס יש לאדום לאלו ולא לבני חם ושם,

וכ׳ז מבואר

Thus, nochri and ach are relative to one another, and are a matter of degree and so may be ambiguous in places. And so let us say we are willing to grant that an Edomi, elsewhere referred to as ach, would be encompassed in this prohibition of usury. Even so, the Edomites were obliterated by Nevuchadnezzar, as we see in sefer Yeshaya. And while the hamon am and others like them make this mistake in thinking that people of that country (?France, Spain?) were of Edom, this is indeed an error. There may be a few around Har Seir. And while the Egyptians returned to Egypt, the Edomite nation did not return. Furthermore, this country of Ibn Caspi was settled in the days of Nevuchadnezzar, with a different populace, that of the sons of Yefes, as Josephus notes.

Ibn Caspi and Diber Torah BeHoveh

Summary: He established this principle, as a signpost, by eshet yefat toar. Then, he uses it to explain other mitzvot, such as maakeh and divorce.

Post: In an earlier post on parashat Ki Teitzei, I discussed whether the beautiful captive woman really needed to be either objectively or subjectively pretty. And Ramban and Ibn Caspi said that this was an instance of dibber Torah b’hoveh, that the Torah uses the normal, commonly occurring case, but that even if she was not pretty, the Biblical law would apply. Ibn Caspi, there, indicated that this could be used as a basis for applying this principle in general, but he does not say, there, where he intended to apply it.

As we read through the rest of Ki Seitzei, we discover other places where, as a pashtan, he applies this principle.

One such instance is maakeh, putting a fence with a height of 10 tefachim atop a roof. The pasuk:

ח  כִּי תִבְנֶה בַּיִת חָדָשׁ, וְעָשִׂיתָ מַעֲקֶה לְגַגֶּךָ; וְלֹא-תָשִׂים דָּמִים בְּבֵיתֶךָ, כִּי-יִפֹּל הַנֹּפֵל מִמֶּנּוּ. 8 When thou buildest a new house, then thou shalt make a parapet for thy roof, that thou bring not blood upon thy house, if any man fall from thence.

Ibn Caspi writes:

כי תבנה בית חדש, כבר קדם לנו כי וראית בשביה אשת יפת תאר וחשקת למשל מופלג לכל התורה כלה, כי

דבר הכתוב בהוה ולכן רבינו משה בספר המצות כאשר מנה זאת

המצוה עשה גזרה בכלל להסיר המכשולים מכל רשותנו:

That is, though by eshet yefat toar she is describes as beautiful, this is not a requirement, but the Torah merely chooses the common case. So too here, even if it is not specifically a house, but some other thing in your domain which poses a danger to others, there is a Biblical requirement from this verse to remove it. He refers us to the Rambam, who writes the following in Mishneh Torah, in the 11th perek of hilchot rotzeach ushmirat nefesh:

א  מצות עשה לעשות אדם מעקה לגגו, שנאמר “ועשית מעקה לגגך” (דברים כב,ח):  והוא, שיהיה בית דירה; אבל בית האוצרות ובית הבקר וכיוצא בהן, אינו זקוק לו.  וכל בית שאין בו ארבע אמות על ארבע אמות, פטור מן המעקה.

…

ד  אחד הגג ואחד כל דבר שיש בו סכנה וראוי שייכשל בו אדם וימות, כגון שהייתה לו באר או בור בחצרו בין שיש בהן מים בין שאין בהן מים—חייב לעשות להן חוליה גבוהה עשרה טפחים, או לעשות לה כסוי כדי שלא ייפול בה אדם וימות.

ה  וכן כל מכשול שיש בו סכנת נפשות—מצות עשה להסירו ולהישמר ממנו ולהיזהר בדבר יפה יפה, שנאמר “הישמר לך ושמור נפשך” (דברים ד,ט).  ואם לא הסיר, והניח המכשולות המביאין לידי סכנה—ביטל מצות עשה, ועבר על “לא תשים דמים” (דברים כב,ח).ש

Halachah 4 does seem to imply that this is part of the Biblical command of maakeh; Rambam lists Rabbinic extensions a bit later. And he connects it to at least part of the pasuk, namely וְלֹא-תָשִׂים דָּמִים. And so one could say that this is a case of diber Torah beHoveh. Yet I wonder if he considers it so. Why does he base the asei portion of this הישמר לך ושמור נפשך on as opposed to that of ועשית מעקה לגגך?

Another instance of diber Torah beHoveh according to Ibn Caspi is divorce, where the pasuk states ki matza bah ervat davar. The pasuk, in Devarim 24:1:

א  כִּי-יִקַּח אִישׁ אִשָּׁה, וּבְעָלָהּ; וְהָיָה אִם-לֹא תִמְצָא-חֵן בְּעֵינָיו, כִּי-מָצָא בָהּ עֶרְוַת דָּבָר—וְכָתַב לָהּ סֵפֶר כְּרִיתֻת וְנָתַן בְּיָדָהּ, וְשִׁלְּחָהּ מִבֵּיתוֹ. 1 When a man taketh a wife, and marrieth her, then it cometh to pass, if she find no favour in his eyes, because he hath found some unseemly thing in her, that he writeth her a bill of divorcement, and giveth it in her hand, and sendeth her out of his house,

There is a three-way dispute as to the meaning of the pasuk:

Beis Shammai— ervas davar, evidence of lewdness or adultery.Beis Hillel— hikdicho tavshilo, she ruins your food.Reb Akiva— motzo acheres no’eh heimeno, you found someone else who is more beautiful than she.

Though how they get this from the pasuk is another story, for another time. Ibn Caspi is rather expansive on the meaning for divorce.

Firstly, Ibn Caspi does not take ervat to mean some manner of lewdness or adultery. As he wrote earlier, on Devarim 23:15:

טו  כִּי ה אֱלֹהֶיךָ מִתְהַלֵּךְ בְּקֶרֶב מַחֲנֶךָ, לְהַצִּילְךָ וְלָתֵת אֹיְבֶיךָ לְפָנֶיךָ, וְהָיָה מַחֲנֶיךָ, קָדוֹשׁ:  וְלֹא-יִרְאֶה בְךָ עֶרְוַת דָּבָר, וְשָׁב מֵאַחֲרֶיךָ.  {ס} 15 For the LORD thy God walketh in the midst of thy camp, to deliver thee, and to give up thine enemies before thee; therefore shall thy camp be holy; that He see no unseemly thing in thee, and turn away from thee. {S}

Ervat davar means as follows:

ערות דבר. כבר בארנו בי ערוה ענינו גלוי, כי הצואה

אין ראוי שתהיה מגולה כי מוליד מאוס בנפש אבל ראוי שתהיה מכוסה:

Thus, it means “revealed matter.” So too in case of reason for divorce, Ibn Caspi writes:

א) כי מצא בה ערות דבר. כמו שקדם אמרו ולא יראה בך ערות דבר (כ״ג ט״ו), והטעם דבר כעור שהיה נסתר בה,

וכן ראוי הנה בשכבו עמה נגלה לו ומצאו ולכן ימאסנה, וכבר קדם לנו

כי הכתוב ידבר לעולם ביותר ההוה והנחנו לעד נאמן אשת יפת תאר :

Thus, it is that he discovers something previously concealed about her, perhaps when he sleeps with her. Therefore he detests her. But this is not to indicate some lewdness or adultery on her part. Furthermore, he maintains more or less like Bet Hillel or even Rabbi Akiva, that this is not arequirement, but rather the common occurrence. Just as we know from the case of the beautiful captive, where her beauty was not a requirement,dibra Torah behoveh. But really he can divorce her for whatever reason.

Are the Taliban barbaric for executing the eloping lovers?

Summary: How do we react to a modern-day reenactment of naarah hameorasah, and what that says about us.

Post: In this week’s parasha, Ki Seitzei:

23. If there is a virgin girl betrothed to a man, and [another] man finds her in the city, and lies with her, כג. כִּי יִהְיֶה נַעֲרָ בְתוּלָה מְאֹרָשָׂה לְאִישׁ וּמְצָאָהּ אִישׁ בָּעִיר וְשָׁכַב עִמָּהּ: 24. you shall take them both out to the gate of that city, and you shall pelt them with stones, and they shall die: the girl, because she did not cry out [even though she was] in the city, and the man, because he violated his neighbor’s wife. So shall you clear away the evil from among you. כד. וְהוֹצֵאתֶם אֶת שְׁנֵיהֶם אֶל שַׁעַר הָעִיר הַהִוא וּסְקַלְתֶּם אֹתָם בָּאֲבָנִים וָמֵתוּ אֶת הַנַּעֲרָ עַל דְּבַר אֲשֶׁר לֹא צָעֲקָה בָעִיר וְאֶת הָאִישׁ עַל דְּבַר אֲשֶׁר עִנָּה אֶת אֵשֶׁת רֵעֵהוּ וּבִעַרְתָּ הָרָע מִקִּרְבֶּךָ:

This is betrothed but not married — kiddushin but not nisuin. Of course, kiddushin is not merely today’s engagement, or today’s tenaim, if they do thetenaim months before, but makes her into an eshet ish. For this specific case to really occur nowadays, she would have to run off with the adulterer to theyichud room in the middle of the chuppah, while the rabbi was preoccupied with reading the ketubah. And then these consensual sexual relations brings about the death penalty. Of course, if a betrothed woman and an adulterer received the death penalty, so would a married woman and an adulterer. Except of course that we don’t do this nowadays, as bet din does not judge capital cases.

Now, what do you think of the following story, which occurred recently in Afghanistan?

Two young lovers have been publicly stoned to death by the Taliban - for having a secret affair.

The married man, 28, and 20-year-old woman, who was engaged to someone else, were arrested when their families shopped them as they planned to elope.

They died at the hands of a baying mob of around 150 in a market at Mullah Quli in Aghanistan’s Kunduz province on Sunday - the first execution of its kind in the normally moderate Muslim area.

One witness said villagers were called to attend the stoning in a loudspeaker announcement from a mosque.

He said: “There was a big crowd, with the women all in black. The Taliban started throwing stones. We were asked to throw too. After a while, the woman was dead but the man was still alive.

“The Taliban shot him three times. They warned villagers if anyone does anything un-Islamic, this will be their fate.” The deaths follow a call last week by fanatical Afghan clerics for a return to capital punishment under sharia law.…

Thus, this was a case of naarah hameurasah — if we consider engagement to be kiddushin — and they were stoned to death. Would you consider this backward, and the act of extremists? If not, would you have said otherwise had I not primed you with the Biblical law?

Regardless of what apologetics — even legitimate ones — we may use, I doubt that anyone would like to see this law practically put into practice. Yes, three times a day we say in davening השיבה שופטינו כבראשונה ויועצינו כבתחילה, and we hope for the times of mashiach when the laws of the Torah will presumably be the laws of the land. Nowadays we don’t have a Sanhedrin, and don’t judge capital crimes in this manner. But those who hope to establish a theocracy in Israel — do you really want this?!

Have we, as a society, moved past this? I would say we have. The difficulty is that this is the word of God. How can you say it is not both just and timeless? There are good answers. but for now I want to leave it as the question.

Distracting dress on the sidelines of battle?

Summary: Did the eshet yefat toar dress so beautifully to distract the enemy armies?

Post: I’ve heard that back in the day, when Flatbush played basketball against all-boys schools such as TA, they would position their cheerleaders under the opposing team’s basket. That way, the boys would be distracted by the pretty cheerleaders and be less likely to make the basket. I don’t know that this was historically true, but it was called to mind by this pasuk and Rashi:

13. And she shall remove the garment of her captivity from upon herself, and stay in your house, and weep for her father and her mother for a full month. After that, you may be intimate with her and possess her, and she will be a wife for you. יג. וְהֵסִירָה אֶת שִׂמְלַת שִׁבְיָהּ מֵעָלֶיהָ וְיָשְׁבָה בְּבֵיתֶךָ וּבָכְתָה אֶת אָבִיהָ וְאֶת אִמָּהּ יֶרַח יָמִים וְאַחַר כֵּן תָּבוֹא אֵלֶיהָ וּבְעַלְתָּהּ וְהָיְתָה לְךָ לְאִשָּׁה: And she shall remove the garment of her captivity: [so that she should not be attractive to her captor,] for they are pretty [clothes], because gentile women adorn themselves during wartime, in order to seduce others [namely, the enemy] to have relations with them. — [Sifrei 21:8] והסירה את שמלת שביה: לפי שהם נאים, שהגוים בנותיהם מתקשטות במלחמה בשביל להזנות אחרים עמהם:

That Sifrei is here:

וְהֵסִירָה אֶת שִׂמְלַת שִׁבְיָהּ מֵעָלֶיהָ  • מלמד שמעביר ממנה בגדים נאים ומלבישה

בגדי אלמנות שהכנענים בנותיהם הם מתקשטות במלחמה בשביל להזנות

אחרים עמהם

I’ve heard this famously explained as an attempt to distract the enemy soldiers in war, and thus allow their own side to win. And a quick search shows me that that is how somewhat at Aish HaTorah presents it:

The elementary respect that is due a fellow human being would require obtaining the beautiful captive’s full consent, even in the case of this provocatively dressed woman who was specifically sent to the battle zone in order to distract invading Jewish soldiers (see Rashi 21,13).

So too here:

 This week’s parsha begins with the parsha of Yefas Toar, a woman who is taken captive at war. The nations of the world used to send their daughters out dressed in their finest in order to distract the enemy at war.

and here:

Rashi tells us that often nations would send out attractive young ladies to distract and ensnare the enemy soldiers .

But that does not seem to be what Rashi and the Sifrei are saying. Where does it say that the fathers, or the nations, are doing this, rather the the girls themselves? And where do they get that they are doing this to distract, rather than to seduce to have sexual relations?

It would seem that they are getting it from the word הם in the Sifrei, implying men, and שהגוים implying that it was the act of the nation. But this could mean that regarding the nations, or more specifically regarding the Canaanites, this is how the women conduct themselves. And מתקשטות  is the reflexive, implying that they do this to themselves.

It would seem that the distraction would come from attributing a reason for the nations to do this. And / or, להזנות אחרים is taken as distraction. Also, perhaps based on the reaction sparked in the Israelite soldier, such that לא דברה תורה אלא כנגד יצר הרע. (Maybe also the incident with Kozbi bat Tzur sent to her specific task?) I don’t find this particularly convincing. , but perhaps there is some other source that clarifies all this. Or perhaps not.

If so, it is interesting how this later explanation was attributed to an early source like Rashi, and even today read into Rashi’s words. It seems to me that this is a fairly common phenomenon.

Need the Eshet Yefat Toar be objectively, or even subjectively, beautiful?

Summary: Not on the level of derash, or even on the level of peshat. But to what degree?

Post: At the beginning of parashat Ki Teitzei:

11. and you see among the captives a beautiful woman and you desire her, you may take [her] for yourself as a wife. יא. וְרָאִיתָ בַּשִּׁבְיָה אֵשֶׁת יְפַת תֹּאַר וְחָשַׁקְתָּ בָהּ וְלָקַחְתָּ לְךָ לְאִשָּׁה:

Must she truly be stunningly beautiful? Consider the following woman, from Nedarim 66b:

A man once said to his wife, ‘Konam that you benefit not from me, until you shew aught beautiful in yourself to R. Ishmael son of R. Jose.’ Said he (R Yishmael) to them: ‘Perhaps her head is beautiful?’ ‘It is round,’ they replied. ‘Perhaps her hair is beautiful?’ ‘It is like stalks of flax.’ ‘Perhaps her eyes are beautiful?’ ‘They are bleared.’ ‘Perhaps her nose is beautiful?’ ‘It is swollen.’ ‘Perhaps her lips are beautiful?’ ‘They are thick.’ ‘Perhaps her neck is beautiful?’ ‘It is squat.’ ‘Perhaps her abdomen is beautiful?’ ‘It protrudes.’ ‘Perhaps her feet are beautiful?’ ‘They are as broad as those of a duck.’ ‘Perhaps her name is beautiful?’ ‘It is lichluchith.’ Said he to them, ‘She is fittingly called lichluchith, since she is repulsive through her defects’; and so he permitted her [to her husband].

If Lichluchit (Hebrew: Cinderella) were not an Israelite woman, and was captured in a battle, could someone take her as a wife, under eshet yefat toar?

Now, beauty is admittedly sometimes subjective. There is no derash I am aware of which places requirements of the beauty, despite it stating אֵשֶׁת יְפַת תֹּאַר. Indeed, the Sifrei explicitly states otherwise:

מנין אפילו כעורה?

ת”ל: וחשקת בה, אע”פ שאינה יפת תואר.

Within the universe of derash, then, had it simply said אֵשֶׁת יְפַת תֹּאַר I might have made such a diyuk. But the next phrase of וְחָשַׁקְתָּ בָהּ either modifies it, or else obliterates this as a requirement.

Ibn Ezra puts it as modification, I think. Thus, as a pashtan, he explains:

יפת תאר -בעיניו.וחשקת בה -שתחשקנה לקחתה לאשה

Thus, she is beautiful in his eyes. One could add: otherwise, why would he want to marry her? Beauty is subjective, rather than objective.

Ramban puts it differently, and there seems to me a practical distinction here. He writes:

יא): אשת יפת תאר - דבר הכתוב בהווה.

ובספרי (תצא ה): ע

מנין אפילו כעורה?

ת”ל: וחשקת בה, אע”פ שאינה יפת תואר.

ור”א אמר:

יפת תואר בעיניו.

It is not (necessarily) subjective measures of beauty, like Ibn Ezra, but rather that the Torah speaks in the common case. He would likely take this captive as a wife because of her beauty, and therefore when speaking of her the Torah speaks of her as a beautiful captive. דבר הכתוב בהווה, but not that this is a true Biblical requirement.

Ibn Caspi says similarly to Ramban:

וראית בשביה וכו׳. וחשקת בה. כן הוא הדין אם

יקח לו אשה כושית וכעורה ביותר, אבל דבר הכתוב בהוה והיה זה

לעד נאמן:

and uses it as excellent proof to establish this important principle in the general case.

(One might have imagined differently if the Torah is only coming to combat the yetzer hara. What if he just thinks she will be good for child-bearing, but is not really that attracted to her?)

_____________________

Which Naarah is Plene? Did Rambam forget the gemara?

In the laws of the defamed maiden:

טו וְלָקַח אֲבִי הַנַּעֲרָ, וְאִמָּהּ; וְהוֹצִיאוּ אֶת-בְּתוּלֵי הַנַּעֲרָ, אֶל-זִקְנֵי הָעִיר—הַשָּׁעְרָה. 15 then shall the father of the damsel, and her mother, take and bring forth the tokens of the damsel’s virginity unto the elders of the city in the gate.

and then:

יט וְעָנְשׁוּ אֹתוֹ מֵאָה כֶסֶף, וְנָתְנוּ לַאֲבִי הַנַּעֲרָה—כִּי הוֹצִיא שֵׁם רָע, עַל בְּתוּלַת יִשְׂרָאֵל; וְלוֹ-תִהְיֶה לְאִשָּׁה, לֹא-יוּכַל לְשַׁלְּחָהּ כָּל-יָמָיו. {ס} 19 And they shall fine him a hundred shekels of silver, and give them unto the father of the damsel, because he hath brought up an evil name upon a virgin of Israel; and she shall be his wife; he may not put her away all his days. {S}

This second occurrence, in pasuk 19, is the only instance in the entire Torah that naarah is spelled plene, with a final heh. In all other places it is a krei ukhetiv, or almost so, with it pronounced naarah but written only with the the consonants of naar. In Nach, there are plenty of others, but this is the case in Torah.

And so goes the masoretic note, as Minchas Shai states, that leit malei batorah, there is no other plene one in the Torah.

We also have this is ketubot, and I would add that perhaps this is a basis of the masoretic note, beside manuscript evidence. In Ketubot 40b, we have:

אמר ר”ל המוציא שם רע על הקטנה פטור שנא’ (דברים כב, יט) ונתנו לאבי הנערה נערה מלא דיבר הכתוב מתקיף לה רב אדא בר אהבה טעמא דכתב רחמנא נערה הא לאו הכי הוה אמינא אפילו קטנה והא כתיב (דברים כב, כ) ואם אמת היה הדבר הזה לא נמצאו בתולים לנערה והוציאו את הנערה אל פתח בית אביה וסקלוה וקטנה לאו בת עונשין היא אלא כאן נערה הא כל מקום שנאמר נער אפילו קטנה במשמע:

Resh Lakish ruled; A man who has brought an evil name upon a minor is exempt, for it is said in Scripture, And give them unto the father of the damsel,53 Scripture expressed the term na’arah as plenum.

R. Adda b. Ahabah demurred: Is the reason then because the All-Merciful has written na’arah, but otherwise it would have been said that even a minor [was included], surely [it may be objected] it is written in Scripture, But if this thing be true, and the tokens of virginity be not found in the damsel, then they shall bring out the damsel to the door of her father’s house, and [the men of her city] shall stone her, while a minor is not, is she, subject to punishment? — [The explanation,] however, [is that since] na’arah [has been written] here [it may be inferred that here only is a minor excluded] but wherever Scripture uses the expression of na’ar even a minor is included.

Thus, there is an explicit derasha on the basis of the naarah in pasuk 19 being spelled malei, with a final heh. And it is easy to extrapolate that it is only this instance in Torah which is malei, but all others are not. That is indeed the import of the gemara.

Yet, as Minchas Shai notes, there is a weirdness when Rambam brings down these laws in his Mishneh Torah. He writes:

הלכות נערה בתולה פרק ג

א המוציא שם רע על בת ישראל, ונמצא הדבר שקר—לוקה, שנאמר “וייסרו, אותו” (דברים כב,יח); ואזהרה שלו, מ”לא תלך רכיל בעמיך” (ויקרא יט,טז). ונותן לאביה, משקל מאה סלעים כסף מזוקק; ואם הייתה יתומה, הרי הן של עצמה. [ב] והמוציא שם רע על הקטנה, או על הבוגרת—פטור מן הקנס, ומן המלקות; ואינו חייב, עד שיוציא על הנערה—שנאמר “והוציאו את בתולי הנערה” (דברים כב,טו;וראה דברים כב,יט), “נערה” מלא דיבר הכתוב.

He is citing the wrong pasuk — one not brought for this purpose in the gemara — and declaring it malei there!! But as we know from our masoretic notes, only pasuk 19 has naarah malei; he is making pasuk 15 malei. These are two separate but interrelated problems: (a) citing the wrong pasuk, and (b) declaring that wrong pasuk malei.

Indeed, the Kesef Mishnah notes (see inside, bottom of right column and top of left column) a separate problem, that according to the conclusion of the gemara, this need not be the source, but rather according to the gemara that it must be talking about a naarah and not a ketana, because it talks of her punishment, of stoning. So in the entire segment we must be talking about naarah. Thus, the gemara concludes with a separate derivation of this law, though it derives things about נער as ketana in general. His answer is that the Rambam chose a derech ketzara here.

But he also asks that the pasuk the Rambam cites is the wrong pasek, and is indeed chaser! He does not offer an answer, other than to say וזה שלא בדיקדוק. Thus, he appears to maintain that Rambam simply made an error.

Indeed, this is one of the big points made in Dr. Marc Shapiro’s Maimonides and His Interpreters (see here), that Rambam sometimes makes mistakes, including in terms of quoting statements. And this may well be what it is here.

However, I would like to defend this Rambam, if possible. It is not so clear to me that Rambam made such a major error here. Rather, he may have simply understood the gemara in a different way.

Part of why we understand the gemara the way we do is that we assume that there is only one instance in all of Torah that naarah is written chaser. Indeed, we have a masorah for that. But is it possible that this masorah was based on the gemara, and not just on manuscript evidence? I would consider it extremely plausible that this is so. Even if not, we find thousands of examples of conflicting masorot, so we might imagine Rambam had a different masorahhere. What I am getting at is that we should lay aside this tradition for a moment, that there is only one instance of naarah that is plene (malei), and then look back at the gemara.

It is only because we assume that only one naarah is plene that we interpret the gemara’s question and answer as we do — namely, that the naarah of pasuk 19, which speaks of the fine, is plene, but others not. And the question is that in the same section, this damsel is threatened with the death penalty, but weknow that a ketana would not receive that punishment. Rather, it is the punishment which shows that in all cases here, we are speaking of a naarah and not ketanah. And the writing in malei in one instance here, in pasuk 19, sets the stage for all other instances, that naar(ah) spelled without the final heh also includes a ketana.

The “difficulty” with this reading is that there are other instances, even within this segment — indeed, even in the instance of stoning, that it is spellednaar(ah), without that final heh. And if we learn out from stoning that it excludes a minor, that it is spelled deficiently in that very instance should disprove the assertion the naar(ah) includes minors.

Maybe we can reread the gemara that way and make this Rav Ada bar Ahava’s objection. But then it is difficult to see how the answer is an answer. The gemara just doesn’t seem (to me) to parse well if we read it in this way I just suggested. How can it extrapolate to other cases? And it seems to be begging the question, and using the problem as if it is the proof. Try reading this into the gemara and see what I mean.

There is another important point. When the gemara cites the pasuk about stoning, which is not pasuk 19, but rather is pasuk 21, they cite it malei. Now this could just be because it is quoting it in the way it is read rather than written. But in a gemara where the very point is the malei vs. chaser, this seems sheer sloppiness!

I would assert that it is not sheer sloppiness. The gemara was citing the pasuk as indeed written. And while throughout all of Torah, it is written deficient, in pasuk 15, 19, and 21 is is written plene. So it is not that the entire section is linked, such that despite it being written deficiently, one asks from the stoning punishment onto another pasuk.

The gemara then reads as follows:

(1) Resh Lakish: That it is not a ketana comes from the plene spelling, which is highly irregular and only occurs in the three pesukim in this section.

(2) Rav Ada bar Ahava: The implication of your statement is that were it not for this plene spelling, I would not know that a ketana is excluded. But if so, the plene spelling in pasuk 21, only, is entirely superfluous. Because that plene spelling would indicate that only a naarah but not a ketanah would be punished. But we would know this anyway, because a ketana is lav bat oneshin! And the Torah does not add letters unnecessarily, so why have this extra heh in naarahin pasuk 21, to create an entirely unnecessary derasha?

(3) The gemara answers: No, this is not superfluous! Rather, it is the entire basis of the association of the derasha of the malei heh with her not being aketana. Here, in pasuk 21, we have a clear instance in which it cannot be a ketana, and it is written in this strange manner, with a full heh. We extrapolate from there. And that is how we know, in general, that if it is written malei it is not a ketana. And the other places, not in this section with three pesukim, but all the other times in Torah, a ketana is included.

This works out well with the gemara.

If so, and if this is how Rambam understood the gemara, then Kesef Mishnah’s first question is resolved. It is not based on the fact that the girl gets stoned, if guilty. Rather, that empowers the naar / naarah distinction, and then we can use the derasha of the malei to learn this out. (Indeed, you might be able to say that without my radical reinterpretation of the gemara.)

Why did the Rambam choose a different pasuk from the gemara, which is chaser rather than malei as he asserts? It is possible he has a slightly differentgirsa of the gemara, which cites pasuk 15. Though obviously 19 is better since it actually discusses the fine.

I don’t think Rambam had a different girsa. Rather, he chose pasuk 15 for one, or both, of these reasons.

(1) This is the first pasuk in the section which is malei, and his point is that all of them are malei in this section. Something we get from the first instance and on.

(2) He is making a cute derasha here, and manages to work the word hotzi in the derasha. Again, he had said:

ואינו חייב, עד שיוציא על הנערה—שנאמר “והוציאו את בתולי הנערה” (דברים כב,טו;וראה דברים כב,יט), “נערה” מלא דיבר הכתוב.

Even though this vehotziu means to bring out evidence, rather than to bring up a false name on her, as we see in pasuk 19 — כִּי הוֹצִיא שֵׁם רָע עַל בְּתוּלַת יִשְׂרָאֵל — pasuk 19 does not have this lucky sequence of words which parallels the point, as the naarah occurs earlier in the pasuk. Therefore, Rambam seizes this one.

Unless he has another girsa in which this is indeed the prooftext in the gemara. Or unless the Rambam forgot.

The conclusion of all this is that since Rambam does not cite the gemara in full, we don’t really know what was before him, and can only try to reconstructhis line of reasoning based on the sources before us. And I believe that the reconstruction I put forth is a reasonable one. However, if so, then perhaps our Sifrei Torah are not in line with the Sefer Torah that the Rambam had; or perhaps what Chazal had. Even so, I would not change our present sifrei Torah.

Which of the two interpretations of the gemara do I find more convincing? I am not going to take a stand on that. I am just suggesting that this could have been how Rambam read the gemara.

One final point: See how the Rif treats this:

ועוד דגרסי’ בפ’ נערה שנתפתתה אמר ריש לקיש המוציא שם רע על הקטנה פטור שנאמר ונתן לאבי הנערה נערה מלא דבר הכתוב וכו’ עד אלא כאן נערה הא כל מקום שנאמר נער אפילו קטנה במשמע

aIt could just be him summarizing in order to get to the broader point he is developing here, but he does seem to leave it, in this derech ketzara, with the implication that it stems from this derasha, and that the conclusion of the gemara reinforces this. And in Rambam’s bet midrash, they studied Rif — indeed, more often than they studied the gemara itself.

What does it mean that they did not greet you with lechem?

In the middle of Ki Teitzei, we get a rather strange reason not to marry (male) converts of Ammon and Moav. Devarim 23:

ד לֹא-יָבֹא עַמּוֹנִי וּמוֹאָבִי, בִּקְהַל יְהוָה: גַּם דּוֹר עֲשִׂירִי, לֹא-יָבֹא לָהֶם בִּקְהַל ה’ עַד-עוֹלָם. 4 An Ammonite or a Moabite shall not enter into the assembly of the LORD; even to the tenth generation shall none of them enter into the assembly of the LORD for ever; ה עַל-דְּבַר אֲשֶׁר לֹא-קִדְּמוּ אֶתְכֶם, בַּלֶּחֶם וּבַמַּיִם, בַּדֶּרֶךְ, בְּצֵאתְכֶם מִמִּצְרָיִם; וַאֲשֶׁר שָׂכַר עָלֶיךָ אֶת-בִּלְעָם בֶּן-בְּעוֹר, מִפְּתוֹר אֲרַם נַהֲרַיִם—לְקַלְלֶךָּ. 5 because they met you not with bread and with water in the way, when ye came forth out of Egypt; and because they hired against thee Balaam the son of Beor from Pethor of Aram-naharaim, to curse thee. ו וְלֹא-אָבָה ה’ אֱלֹהֶיךָ, לִשְׁמֹעַ אֶל-בִּלְעָם, וַיַּהֲפֹךְ ה’ אֱלֹהֶיךָ לְּךָ אֶת-הַקְּלָלָה, לִבְרָכָה: כִּי אֲהֵבְךָ, ה’ אֱלֹהֶיךָ. 6 Nevertheless the LORD thy God would not hearken unto Balaam; but the LORD thy God turned the curse into a blessing unto thee, because the LORD thy God loved thee. ז לֹא-תִדְרֹשׁ שְׁלֹמָם, וְטֹבָתָם, כָּל-יָמֶיךָ, לְעוֹלָם. {ס} 7 Thou shalt not seek their peace nor their prosperity all thy days for ever. {S}

I can understand the bit about hiring Bilaam to curse them. But that they did not go out to greet you with bread and water? This is a shev veAl taaseh. And they did not do an action. For that minor lack of action, they should have this pegam?

Rashi seems to skip over this. Well, not precisely; he takes the al devar from the beginning strange reason and applies it to the end of the pasuk:

Because: Heb. עַל-דְּבַר [lit., “because of the word,” i.e.,] because of the [word of] advice they gave you (sic), to cause you to sin. — [Sifrei 23:114] על דבר: על העצה שיעצו אתכם להחטיאכם: on the way: when you were in [a state of] extreme exhaustion. — [Sifrei 23:114] בדרך: כשהייתם בטירוף:

The first comment adds a reason. The second perhaps is explaining why it was such a bad thing that they did not greet you with these things.

Ramban summarizes various opinions and why he disagrees with them. I mostly agree with his conclusions. He writes:

(ה): על דבר אשר לא קדמו אתכם בלחם ובמים -

מצינו (לעיל ב כח כט): אכל בכסף תשבירני ואכלתי ומים בכסף תיתן לי ושתיתי כאשר עשו לי בני עשו היושבים בשעיר והמואבים היושבים בער. ורבים אמרו שהם לא קדמו אותם אבל ישראל קנו מהם.

וזה הבל, כי די למחנה שימכרו להם כאשר ירצו לקנות.

ועוד כי ישראל לא באו בגבול מואב, והמואבים הוציאו להם לחם ומים בכסף, והכתוב יספר שעשו המואבים כאשר עשו בני עשו, ולמה ירחיק המואבי לעולם בעבור זה ולא יתעב האדומי:

ור”א אמר (לעיל ב כט:

כי טעם כאשר עשו לי בני עשו והמואבים, על אעברה בארצך בדרך (שם פסוק כז), אבל לא מכרו להם לחם ומים. כי הם עברו בהר שעיר ובער, רק מלך אדום לא הניחם לעבור דרך מדינתו אשר הוא יושב בה, והוא מה שאמר (במדבר כ יח): לא תעבר בי.

גם זה הבל, כי הם אמרו אל מלך אדום אעברה בארצך, וימאן אדום נתן את ישראל עבור בגבולו (שם פסוק כא), הנה לא נכנסו כלל בגבול אדום. וכן כתוב (שם כא ד): ויסעו מהר ההר דרך ים סוף לסבב את ארץ אדום, כי הוצרכו לשוב לאחור דרך ים סוף מהר ההר שהוא על גבול ארץ אדום, ולא באו בארץ אדום עצמה כלל. ויפתח אמר בביאור (שופטים יא טז - יח): כי בעלותם ממצרים וילך ישראל במדבר עד ים סוף ויבא קדשה וישלח ישראל מלאכים אל מלך אדום לאמר אעברה נא בארצך ולא שמע מלך אדום וגם אל מלך מואב שלח ולא אבה וישב ישראל בקדש וילך במדבר ויסב את ארץ אדום ואת ארץ מואב וגו’ ויחנון בעבר ארנון ולא באו בגבול מואב, הנה זה מפורש שלא באו כלל בארץ אדום ולא בארץ מואב. ואלו באו שם היו מוכרין להם לחם ומים, כי אין המנהג לנותן רשות לעם הצבא לעבור בארצו שלא ימכר להם לחם ומים:

והנראה אלי כי הכתוב הרחיק שני האחים האלה שהיו גמולי חסד מאברהם, שהציל אביהם ואמם מן החרב והשבי (בראשית יד טז), ובזכותו שלחם השם מתוך ההפכה (שם יט כט). והיו חייבין לעשות טובה עם ישראל, והם עשו עימהם רעה. האחד שכר עליו בלעם בן בעור והם המואבים, והאחד לא קדם אותו בלחם ובמים כאשר קרבו למולו, כמו שכתוב (לעיל ב יח יט): אתה עובר היום את גבול מואב את ער וקרבת מול בני עמון. והנה הכתוב הזהירם (שם פסוק יט): אל תצורם ואל תתגר בם, והם לא קדמו אותם כלל, כי היה הכתוב אומר “כאשר עשו לי בני עשו המואבים והעמונים”, אבל לא הזכיר עמון, שלא קדמו אותם:

והנה עמון הרשיע בזה יותר מכולם, כי בני עשו והמואבים כאשר ידעו שהוזהרו ישראל שלא יתגרו בהם הוציאו לחם ומים חוץ לגבולם, ועמון לא אבה לעשות כן, וזה טעם “אשר לא קדמו”, שלא יצאו לקראתם בלחם ובמים כאשר עשו האחרים. ולכך הקדים הכתוב “עמוני” והקדים להזכיר פשעו על דבר אשר לא קדמו אתכם, ואחרי כן הזכיר “מואבי” וחטאתו.

I don’t think that this pertains to either selling them food and water, or refusing them even that. And I don’t think that they were somehow chayav to greet them with food and water.

Rather, I would assert that all this is an idiom, or used to stress the offense mentioned in the second half of the pasuk. It is exaggeration. Because of the close historical and familial bond, by all rights the proper thing to do would have been to bake you a cake when you got out of Egypt — to make a ticker-tape parade, and welcome you to the neighborhood. That should have been their attitude — not their actions. But they took an action which was the opposite of what their attitude should have been. They hired Bilaam to curse you. (This is not the same as Ramban, but approaches it.)

Of course, this non-literal peshat might eliminate some of the reasoning given for Ammoni velo Amonit, but that is beside the point.

The Mother’s Fault

In Ki Teitzei, in Devarim 21:

יח כִּי-יִהְיֶה לְאִישׁ, בֵּן סוֹרֵר וּמוֹרֶה—אֵינֶנּוּ שֹׁמֵעַ, בְּקוֹל אָבִיו וּבְקוֹל אִמּוֹ; וְיִסְּרוּ אֹתוֹ, וְלֹא יִשְׁמַע אֲלֵיהֶם. 18 If a man have a stubborn and rebellious son, that will not hearken to the voice of his father, or the voice of his mother, and though they chasten him, will not hearken unto them;

Ibn Ezra makes a lot in these parshiyot of semichut of one section to the other. He finds all sorts of threads, many of them quite plausible, accounting for why these laws are lumped together, in their respective order. It is free-association as peshat.

In terms of the connection between yefat toar and ben sorer umoreh, Ibn Ezra writes:

ונסמכה זו הפרשה אשת יפת תאר

והעד ושם אמו והרמז שרמזתי בבני

אהרן

Mechokekei Yehuda, in Yahel Or explains:

כי הבן יתייחס אחר האס והעד ושם אמו שלומית בת

דברי (ויקרא כל יא) ושס אמו מעכה (מ״א סו ב) כי

הבן על הרוב יקבל טבע אמו , וכן אמר דוד אני עבדך

בן אמתך (תהילים, קטז טז)ש

שזכו בני אהרן לכהונה

בעבור אמם שהיתה בת עמינדב אחות נחשון , עיין

ש(שמות ו כג) בפי׳ הח׳ זיל ובבאורי שם

Thus, it is to be attributed to the mother and her status. The son, in most cases, takes the nature of the mother. That is why Ibn Ezra noted the smichut and then said that “and the name of his mother” is the proof, together with the secret he hinted at in terms of the sons of Aharon.

That Ibn Ezra he refers to is on Shemot 6:23:

כג וַיִּקַּח אַהֲרֹן אֶת-אֱלִישֶׁבַע בַּת-עַמִּינָדָב, אֲחוֹת נַחְשׁוֹן—לוֹ לְאִשָּׁה; וַתֵּלֶד לוֹ, אֶת-נָדָב וְאֶת-אֲבִיהוּא, אֶת-אֶלְעָזָר, וְאֶת-אִיתָמָר. 23 And Aaron took him Elisheba, the daughter of Amminadab, the sister of Nahshon, to wife; and she bore him Nadab and Abihu, Eleazar and Ithamar.

where Ibn Ezra says:

[ו, כג]

ויקח -

הזכיר אשת אהרן בעבור כבוד אלעזר והזכיר אחות נחשון בעבור כבוד הכהונה.

Before seeing it inside, it seemed possible that his remez was to gnay rather than to shvach. After all, local to Ki Teitzei, he is talking about a bad seed going after the mother. And some of Aharon’s sons were punished with death for misdeeds. Yet here it is all for shevach, for Aharon and the Kehuna.

Unless… he did after all say it is a hint he is hinting at. Tt could be that he is indeed hinting at gnay here. For the honor of Eleazar and the honor of the Kehuna, it refers to the wife of Aharon (lo leIsha), thus tying her and thus him, to Aharon. And it says the sister of Nachshon because of the honor of the priesthood, tying it again to good, perhaps only via Nachshon, and not via Elisheva herself. But the other aspects are not so good, and they manifested badly in two of her children. But the pasuk is still trying to rescue Eleazar’s honor and the priesthood’s honor. And if it were such a straightforward positive thing, why should he leave it as a remez?

I don’t know if this is so, but given that it is a remez, it seems that it is potentially somewhat ambiguous.

Mekor Chaim says that it is for good, and that is the reason for all those positive associations. Over against Moshe’s children, who did not merit the priesthood, because of

Perhaps we could suggest that this is the secret in Ibn Ezra discussed in this post, by taking the Mekor Chaim here and stuffing it into Meshech Chochmathere — why Moshe’s descendants were not a good alternative.

Is a mamzer a bastard, or a member of a certain nation?

In Devarim 23, a bunch of instructions of who may not enter into the congregation of the Lord:

א לֹא-יִקַּח אִישׁ, אֶת-אֵשֶׁת אָבִיו; וְלֹא יְגַלֶּה, כְּנַף אָבִיו. {ס} 1 A man shall not take his father’s wife, and shall not uncover his father’s skirt. {S} ב לֹא-יָבֹא פְצוּעַ-דַּכָּא וּכְרוּת שָׁפְכָה, בִּקְהַל ה’. {ס} 2 He that is crushed or maimed in his privy parts shall not enter into the assembly of the LORD. {S} ג לֹא-יָבֹא מַמְזֵר, בִּקְהַל ה’: גַּם דּוֹר עֲשִׂירִי, לֹא-יָבֹא לוֹ בִּקְהַל ה’. {ס} 3 A bastard shall not enter into the assembly of the LORD; even to the tenth generation shall none of his enter into the assembly of the LORD. {S}ד לֹא-יָבֹא עַמּוֹנִי וּמוֹאָבִי, בִּקְהַל ה’: גַּם דּוֹר עֲשִׂירִי, לֹא-יָבֹא לָהֶם בִּקְהַל ה’ עַד-עוֹלָם. 4 An Ammonite or a Moabite shall not enter into the assembly of the LORD; even to the tenth generation shall none of them enter into the assembly of the LORD for ever;

and later on, it continues with the Edomi. But what is a “mamzer”? If we did not know the meaning of the word, but had to figure it out from immediate context, there would be two possibilities. The preceding context has to do intercourse. One should not have illicit relations with his father’s wife — or likely, marry her. And also various people, who are already presumably Israelites, who because of problems with their procreative organ, cannot marry into thekehal Hashem. A mamzer could then be of a similar sort, an Israelite, but with some pegam that renders him unfit.

The other possibility is that a mamzer is a person of a nation called Mamzer. After all, compare the 10th generation bit from one to the other. And all these nations are being given in the succeeding context. On the other hand, all of the members of those nations end with an iy sound — Mitzri, Ammoni, Edomi. It does not say Mamzeri!

At any rate, Ibn Ezra actually offers both as possibilities. Thus, he writes:

ממזר. אחז״ל הבא מן העריות והשנים ממי״ן נוספין כממיין, נהרסו ממגורות (יואל א יז) ואחרים אמרו כי הוא שם גוי , וישב ממזר באשדוד (זכריה ט ו) כי רחוק הוא שיקרא שם ישראל , ואף כי בעת הישועה בשם גנאי, והמתרגם תפש דרך קצרה ודרש

Thus, he gives the possibility, as per Chazal, that it is a “bastard,” and that it is based on the root זר with two additional mems, giving another example of this phenomenon. And that others say that it is the name of a nation. He points us to Zecharia 9:6:

ו וְיָשַׁב מַמְזֵר, בְּאַשְׁדּוֹד; וְהִכְרַתִּי, גְּאוֹן פְּלִשְׁתִּים. 6 And a bastard shall dwell in Ashdod, and I will cut off the pride of the Philistines.

and that since this for the future time, at the time of redemption, it is not fitting that even those children from illicit relations would be called by a derogatory name such as Mamzer. Rather, it refers there to the nation called Mamzer.

It is somewhat unclear what Ibn Ezra means by והמתרגם תפש דרך קצרה ודרש. This confounds Mechokekei Yehuda, Ibn Ezra’s supercommentator, who writes:

ולא ידעתי אל מי מהמתרגמים יכוון, כי או״ת

ממזירא , ואם נחשוב שכבר היה לפני הראב״ע

תרגום המיוחס ליונתן, מדוע יאמר דרך קצרה

ויונתן הרחיב הדברים, כאשר יראה המעיין שם, אם לא נאמר

שאמר הרב זה בדרך התול כדרכו (המעמר) ולפי גירסת המקור חיים

שהבאתי ביהל אור סרה קושית המעמר

That is, he does not know which of the Targumists Ibn Ezra intended. For Onkelos merely renders it Mamzera; and if we think that there was already before the Ibn Ezra the targum (incorrectly) attributed to Yonatan ben Uziel, why should he say “in a brief way” when Yonatan expands on the words, as one who looks will discover — unless one says that Ibn Ezra said this in jest, in his manner (the position of the Maamer, Rav Meir Wolf). And according to the girsa of the Mekor Chaim cited in Yahel Or, the question of the Maamer goes away.

In Yahel Or, the Mechokekei Yehuda writes:

והמקו”ח גרס ,”תפס דרך דרש” ר”ל שתרגם יונתן בן עוזיאל שם “ויתיבין ישראל באשדוד דהוו בה כנוכראין” הוא דרך דרש ולא פשט ועיין קרני אור

That is, while Pseudo-Yonatan on Torah might well not have been before Ibn Ezra, Targum Yonatan on Neviim certainly was. And there, it goes on at length, as you can see here. In which case, derech ketzara was either a jest, or else should be eliminated from the girsa of Ibn Ezra’s commentary. You can see the Mekor Chaim here, note 58, though I don’t see his change of girsa.

This lengthy translation of Yonatan of the pasuk in Zechariah is that these were Israelites in Ashdod, who were nevertheless strange to it. And we see Rashi say it there, as well as Mahari Kara. Metzudat David considers that they might be actual bastards, or if not, as per Rashi said. Radak gives all three possibilities.

And Ibn Ezra there expands on his perush, and lets us know who came up with the idea of Mamzer being a nation, as well as if he agrees with it! He writes what is pictured to the right. Thus, it is a 10th century Spanish parshan, Yehuda ben Rabbi Shmuel Ibn Balaam, HaSefaradi, who likely wrote this in Judeo-Arabic. I am not sure whether on the pasuk in Zecharia, on the pasuk in Ki Teitzei, or on both.

But Ibn Ezra asserts that his own position is that it is, here in Zecharia, the mamzer of arayot, illicit relations, who dwelled by themselves close to Yerushalayim, and thus the import of the verse is to the degraded and lowly people in Israel would dwell by themselves in the cities of the Philistines, and not be reckoned among those of valid lineage.

Is this a reversal of Ibn Ezra, or not? In Zecharia, he clearly decides in accordance with Chazal, more or less — mamzer refers to children from illicit relations. In Ki Teizei, he gives both positions, and he labels what the Targumist translates to be derech ketzara uderash. But maybe only derech derash. Or maybe both, but the ketzarah bit was a jest. And we don’t know which Targumist he meant, and whether the Targum on Ki Teitzei or Zechariah. Depending on how you choose to interpret Ibn Ezra, he either can remain consistent or else he reverses himself.

I would assert that if Ibn Ezra was referring to the pasuk in Zechariah, then he either spoke in jest or else we must emend to match the girsa of the Mekor Chaim. And then Ibn Ezra is entirely consistent, because Targum Yonatan there is somewhat midrashic, understanding mamzer not in its classic sense but as regular Israelites who are zarim.

But if Ibn Ezra refers to the pasuk in Ki Teitzei, then I assert that there is no problem. The Targumist is the classic Targumist, Onkelos. And By translating it as mamzeira, Onkelos is not translating. He is letting us stay with our perceptions of mamzer, as defined for us by Chazal. And it is much shorter to say that than to say “the nation of Mamzer.” This is what Ibn Ezra means by derech ketzara. And the derash would be following Chazal’s interpretation ofmamzer as opposed to Ibn Bilaam’s definition. If so, Ibn Ezra would be reversing himself, and an interesting question would then be which perush he authored first.

Even so, I think the former possibility is the most likely. He is bringing a prooftext from Zechariah, but he has a “weird” interpretation of that prooftext, not in accord with the Targum, as he spells out. And so Ibn Ezra preempts a question by explaining that the Targum there is not peshat, so his proof is a valid proof to the meaning of mamzer. To say that it is Onkelos locally could work, but it comes out of left field — Ibn Ezra does not need to justifytranslating a pasuk differently from Onkelos, and we would not expect that Onkelos’s translation local to Ki Teitzei is particularly midrashic; and finally, it is not good to create a dispute between Ibn Ezra and himself unnecessarily.

Now, Ibn Ezra does not contradict himself. While the Targum on Zechariah is surely midrashic, that does not mean that Ibn Balaam’s explanation is the true explanation. Rather, in both places, Ibn Ezra ends up holding that mamzer means bastard.

Some if this might be clarified if we could just look at Ibn Bilaam’s perush.

The first of his strength, and how Ibn Ezra becomes a darshan

A father must acknowledge his firstborn son of his two wives, as we are told in parshat Ki Teitzei:

יז כִּי אֶת-הַבְּכֹר בֶּן-הַשְּׂנוּאָה יַכִּיר, לָתֶת לוֹ פִּי שְׁנַיִם, בְּכֹל אֲשֶׁר-יִמָּצֵא, לוֹ: כִּי-הוּא רֵאשִׁית אֹנוֹ, לוֹ מִשְׁפַּט הַבְּכֹרָה. 17 but he shall acknowledge the first-born, the son of the hated, by giving him a double portion of all that he hath; for he is the first-fruits of his strength, the right of the first-born is his. {S} I would assert that on a peshat level, reishit ono is idiomatic. It means bechor, but specifically the first child that he has had. And bechor is not sufficient, for both of them are bechor, just from different wives. This idiom shifts the focus to the father’s output.

But Ibn Ezra has a suprisingly midrashic comment on this pasuk:

כי הוא ראשית אונו . הנודע עם הישר ידבר וכל ישראל בחזקת ישרים

As Yahel Or (=Mechokekei Yehuda) and Avi Ezer write, this is just as we saw regarding Yaakov Avinu in Vaychi, in describing Reuven as reshit oni, in accordance with Rashi’s explanation over there:

3. Reuben, you are my firstborn, my strength and the first of my might. [You should have been] superior in rank and superior in power. ג. רְאוּבֵן בְּכֹרִי אַתָּה כֹּחִי וְרֵאשִׁית אוֹנִי יֶתֶר שְׂאֵת וְיֶתֶר עָז: and the first of my might: That is, his first drop [of semen], for he had never experienced a nocturnal emission. — [from Yeb. 76a]וראשית אוני: היא טפה ראשונה שלו, שלא ראה קרי מימיו:

What Ibn Ezra is thus saying, local to Ki Teitzei is that reshit ono in terms of the son of the senuah was the result of his first drop, and the audience are righteous upright people, with all of Israel being under the assumption of being upright.

This dores not strike me as peshat, however brilliant this comment is. Rather reshit ono is an idiom, which more or less parallels bechor. Indeed, I would assert that this is its role in parshat Vaychi as well — firstly to provide a poetic repetition to bechori, and secondly to single out Reuven over three other brothers as the paternal bechor, rather than maternal bechor. The first of his strength can be so even if he experienced a seminal emission before.

Indeed, I get the sense that Ibn Ezra is in a more midrashic frame of mind in Ki Teitzei, from other statements he makes here — perhaps because specifically in legal codes there are major arguments with Karaites. He refers several times to the divrei hamakchishim when presenting his contrary commentary in support of Chazal.

Looking to Ibn Ezra on Vaychi, we see that he specifically does not explain it as Rashi does. He thus does not endorse this as the peshat meaning of reishit on.

ראובן בכורי אתה בחי. בך נראה בתחלה כחי

(והבכור יקרא ראשית און וכמוהו ״ראשית אונים” (תה׳ עח נא

And I say this even though Mechokekei Yehuda, in his Yahel Or commentary, might try to bring this idea back in, as this “koach” is a melitza for semen.

Ibn Ezra referred to Tehillim 78:51, where it is used as a poetic parallel for first-born.

נא וַיַּךְ כָּל-בְּכוֹר בְּמִצְרָיִם; רֵאשִׁית אוֹנִים, בְּאָהֳלֵי-חָם. 51 And smote all the first-born in Egypt, the first-fruits of their strength in the tents of Ham;

Ibn Ezra has no comment there, which can help us out.

The Milchemet Yachid, with one’s will — and whether such a derasha is justified

Ki Teitzei begins {Devarim 21}:

י כִּי-תֵצֵא לַמִּלְחָמָה, עַל-אֹיְבֶיךָ; וּנְתָנוֹ ה’ אֱלֹהֶיךָ, בְּיָדֶךָ—וְשָׁבִיתָ שִׁבְיוֹ. 10 When thou goest forth to battle against thine enemies, and the LORD thy God delivereth them into thy hands, and thou carriest them away captive, In the word oyevecha, the segol under the bhet and the unpronounced yud which follows marks it as a plural noun. Thus, “your enemies,” in plural. Constrast this to, for example, Devarim 28:55:

נה מִתֵּת לְאַחַד מֵהֶם, מִבְּשַׂר בָּנָיו אֲשֶׁר יֹאכֵל, מִבְּלִי הִשְׁאִיר-לוֹ, כֹּל—בְּמָצוֹר, וּבְמָצוֹק, אֲשֶׁר יָצִיק לְךָ אֹיִבְךָ, בְּכָל-שְׁעָרֶיךָ. 55 so that he will not give to any of them of the flesh of his children whom he shall eat, because he hath nothing left him; in the siege and in the straitness, wherewith thine enemy shall straiten thee in all thy gates.

There, oyivcha, with a chirik under the first yud, a sheva under the bhet, and no unpronounced yud following demostrates that this is a singular noun, rather than plural. Thus, “enemy.”

Sometimes, the krei and ketiv can differ, and the word can be pronounced as plural, as if the yud were there, even though as written in the sefer Torah is it absent. One such example was in last week’s parsha, in Shofetim:

דברים פרק כ

• פסוק א: כִּי-תֵצֵא לַמִּלְחָמָה עַל-אֹיְבֶךָ, וְרָאִיתָ סוּס וָרֶכֶב עַם רַב מִמְּךָ—לֹא תִירָא, מֵהֶם: כִּי-ה’ אֱלֹהֶיךָ עִמָּךְ, הַמַּעַלְךָ מֵאֶרֶץ מִצְרָיִם.

But also a few pesukim before the examples in Devarim 28:

דברים פרק כח

• פסוק נג: וְאָכַלְתָּ פְרִי-בִטְנְךָ, בְּשַׂר בָּנֶיךָ וּבְנֹתֶיךָ, אֲשֶׁר נָתַן-לְךָ, יְהוָה אֱלֹהֶיךָ—בְּמָצוֹר, וּבְמָצוֹק, אֲשֶׁר-יָצִיק לְךָ, אֹיְבֶךָ.
• פסוק נה: מִתֵּת לְאַחַד מֵהֶם, מִבְּשַׂר בָּנָיו אֲשֶׁר יֹאכֵל, מִבְּלִי הִשְׁאִיר-לוֹ, כֹּל—בְּמָצוֹר, וּבְמָצוֹק, אֲשֶׁר יָצִיק לְךָ אֹיִבְךָ, בְּכָל-שְׁעָרֶיךָ.
• פסוק נז: וּבְשִׁלְיָתָהּ הַיּוֹצֵת מִבֵּין רַגְלֶיהָ, וּבְבָנֶיהָ אֲשֶׁר תֵּלֵד, כִּי-תֹאכְלֵם בְּחֹסֶר-כֹּל, בַּסָּתֶר—בְּמָצוֹר, וּבְמָצוֹק, אֲשֶׁר יָצִיק לְךָ אֹיִבְךָ, בִּשְׁעָרֶיךָ.

Thus, the first example was oyevecha (plural), while the other two were oyivcha (singular).

It can also go in the opposite direction, with the yud present in the Biblical text but with an Oral tradition that it is pronounced as if without. Thus:

שמואל א פרק כד

• פסוק ד: וַיֹּאמְרוּ אַנְשֵׁי דָוִד אֵלָיו, הִנֵּה הַיּוֹם אֲשֶׁר-אָמַר יְהוָה אֵלֶיךָ הִנֵּה אָנֹכִי נֹתֵן אֶת-איביך (אֹיִבְךָ) בְּיָדֶךָ, וְעָשִׂיתָ לּוֹ, כַּאֲשֶׁר יִטַב בְּעֵינֶיךָ; וַיָּקָם דָּוִד, וַיִּכְרֹת אֶת-כְּנַף-הַמְּעִיל אֲשֶׁר-לְשָׁאוּל—בַּלָּט.

Or in Mishlei, 24:17:

יז בִּנְפֹל אויביך (אוֹיִבְךָ), אַל-תִּשְׂמָח; וּבִכָּשְׁלוֹ, אַל-יָגֵל לִבֶּךָ. 17 Rejoice not when thine enemy falleth, and let not thy heart be glad when he stumbleth;

In certain instances it does not really matter, from a peshat perspective, which one it is, because many enemies can be considered plural, or else singular if viewed as a collective. Sometimes when it deals with one person being an enemy, the choice really matters.

At any rate, Baal Haturim notes in his commentary to this pasuk in Ki Teitzei that oyevecha is written with the yud deficient. And he gives the naturally sensible derash on this — if one were to insist on making a derash on it — that the pasuk is speaking of a milchemet yachid. In our Mikraos Gedolos, the cited words are indeed written chaser yud.

Though in earlier printings, the citation is written as maleh yud — though not, I think, to indicate a text contrary to Baal Haturim’s very comment, but to show how to pronounce it, and thus highlight that the chaser yud is contrary to the way it is pronounced, such that it should certainly be darshened.

What does Baal HaTurim mean by milchemet yachid? I would guess that milchemet yachid, he means the milchemet hayetzer. This is a man’s struggle with his own inclination. Indeed, the pasuk is only speaking keneged the yetzer hara. As we see in Kiddushin 21b:

ת”ר וראית בשביה בשעת שביה אשת ואפילו אשת איש יפת תואר לא דברה תורה אלא כנגד יצר הרע מוטב שיאכלו ישראל בשר תמותות שחוטות ואל יאכלו בשר תמותות נבילות (דברים כא, יא) וחשקת אע”פ שאינה נאה בה ולא בה ובחברתה ולקחת ליקוחין יש לך בה לך לאשה שלא יקח שתי נשים אחת לו ואחת לאביו אחת לו ואחת לבנו (דברים כא, יב) והבאתה מלמד שלא ילחצנה במלחמה:

and the idea is found locally in Rashi as well; and this would influence Baal Haturim in his novel derasha, in bolstering an existing message.

In our own times, we see Rav Mordechai Eliyahu make a similar derasha, though without focusing on the krei and ketiv. Thus:

ואומר הגאון הרב מרדכי אליהו שליטא: הדבר רמוז בפסוק במעבר שבין הפתיחה בלשון רבים לסיום בלשון יחיד. בתחילה אומרת התורה “כי תצא למלחמה על אויביך” – לשון רבים, ובסוף – “ונתנו ה’ אלוקיך בידך ושבית שביו”. שהתורה רומזת כאן למלחמה של האדם כנגד יצרו. דרכו של היצר הרע לבוא אל האדם בערמה ותחבולה בדמות “אויבים רבים” אותו יצר (יחיד) בא לו לאדם בצורות ודרכים שונות על מנת להחטיאו לבל יקיים תורה ומצוות, ובאה התורה ללמד את האדם שידע מהי הדרך בה ילחם עם יצרו עד שיקויים בו “ונתנו ה’ אלוקיך בידך ושבית שביו”.ש

Certainly the lashon yachid that occurs later in the pasuk, in וּנְתָנוֹ and perhaps as well in שִׁבְיוֹ, helps this along. But the Baal Haturim’s prooftext is still the almost krei and ketiv, that it is written chaser, even though it is pronounced as if malei.

The problem with this, as Minchas Shai points out, is that this word oyevecha is not written chaser. Scroll up and examine the pasuk again.

Indeed, looking at a Tanach with masoretic notes on the side, we see that it is written malei, and no masoretic note on the side indicates otherwise. Minchas Shai attributes this error to Baal Haturim’s hurriedness. There is indeed such a masoretic note, but on the previous instance of ki teitzei lamilchama al oyevecha, which occurred in parshat Shofetim. There, we have {Devarim 20}:

א כִּי-תֵצֵא לַמִּלְחָמָה עַל-אֹיְבֶךָ, וְרָאִיתָ סוּס וָרֶכֶב עַם רַב מִמְּךָ—לֹא תִירָא, מֵהֶם: כִּי-ה’ אֱלֹהֶיךָ עִמָּךְ, הַמַּעַלְךָ מֵאֶרֶץ מִצְרָיִם. 1 When thou goest forth to battle against thine enemies, and seest horses, and chariots, and a people more than thou, thou shalt not be afraid of them; for the LORD thy God is with thee, who brought thee up out of the land of Egypt.

and so do the Rama and Meiri write, that this instance of oyevecha is malei. And one should not ask from the singular unetano and shivyo, because there are other such examples. And that Or Torah writes the same thing.

We can see Or Torah here. Basically, he says, with apologies to Baal Haturim, that Baal Haturim was not exacting here and misread the masoretic note, which was actually referring to the pasuk in parshat Shoftim. And that it is indeed malei, in all the holy sefarim, as well as ancient sefarim.

Looking again at our Tanach with masoretic notes on the side, this time in parshat Shofetim, we encounter what is pictured to the right. It states that there are two which are chaser, despite being plural and pronounced with a segol. Perhaps this can provide us with an inside with Baal Haturim’s motivation. Perhaps he did know that it was on the pasuk in Shofetim, but he thought that the second occurrence was the next plural oyevecha, which occurred in close proximity. Whereas in reality the only other time this occurs in Tanach is in Devarim 28, in the example discussed above.

Or else, the following happened to me yesterday. I was called up for Levi for Mincha, and had difficulty finding the place for about 30 seconds. Neither could the baal korei. This because it had opened to the earlier column, such that I glanced at Ki Teizei and thought that I was in the correct parsha. It was only after being confounded in finding the second aliyah that I looked more closely. Perhaps he could have done the same.

Or perhaps he was not looking in a chumash or sefer Torah for this — since much of this commentary is based on malei or chaser, or tagin on certain letters, perhaps when writing this he only looked at the text of the masoretic notes.

Or perhaps despite Minchas Shai, Or Torah, Rama and Meiri, there indeed was a variant text in which the word is written chaser. I would note that the masoretic note claims there are two such chaser instances, and we have identified those two. But perhaps he still had a variant. I would point to another pasuk in parshat Ki Teitzei, which presumably everyone has malei, since it is not one of these two, and since I saw no discussion of it in Minchas Shai. That pasuk is in Devarim 23:10:

י כִּי-תֵצֵא מַחֲנֶה, עַל-אֹיְבֶיךָ: וְנִשְׁמַרְתָּ—מִכֹּל, דָּבָר רָע. 10 When thou goest forth in camp against thine enemies, then thou shalt keep thee from every evil thing.

However, if we look in Yerushalmi, where this pasuk is cited, we find it written chaser! Thus, in Yerushalmi Kiddushin 45b:

רבי שמואל בר נחמן בשם רבי יונתן כתיב (דברי הימים א ז) והתייחשם בצבא במלחמה זכות יחסיהם עומדת להם במלחמה עד כדון מן הקבלה מדברי תורה (דברים לז) לא יבא ממזר בקהל י”י. (דברים לז) לא יבא פצוע דכא וגו’ וגו’ מה כתיב בתריה כי תצא מחנה על אויבך וגו’:

Confounding this of course is the malei vav, but we saw Baal Haturim write it as such as well, in terms of the first pasuk. And that malei is more necessary as a cue to how to pronounce. At any rate, perhaps one can use this to mount a defense of Baal Haturim’s purported nusach. Though I don’t know that one should.

Why may one of crushed stones not enter into kehal Hashem?

I don’t think this is necessarily true, but the following possibility occurred to me. In Devarim 23:

ב לֹא-יָבֹא פְצוּעַ-דַּכָּא וּכְרוּת שָׁפְכָה, בִּקְהַל ה’. {ס} 2 He that is crushed or maimed in his privy parts shall not enter into the assembly of the LORD. {S} ג לֹא-יָבֹא מַמְזֵר, בִּקְהַל ה’: גַּם דּוֹר עֲשִׂירִי, לֹא-יָבֹא לוֹ בִּקְהַל ה’. {ס} 3 A bastard shall not enter into the assembly of the LORD; even to the tenth generation shall none of his enter into the assembly of the LORD. {S} ד לֹא-יָבֹא עַמּוֹנִי וּמוֹאָבִי, בִּקְהַל יְהוָה: גַּם דּוֹר עֲשִׂירִי, לֹא-יָבֹא לָהֶם בִּקְהַל ה’ עַד-עוֹלָם. 4 An Ammonite or a Moabite shall not enter into the assembly of the LORD; even to the tenth generation shall none of them enter into the assembly of the LORD for ever;

The traditional interpretation, which has tremendous merit, is that one who has crushed or maimed private parts has a pegam, and this pegam, just like that of mamzerut or coming from one of these nations, is sufficient to prevent him from marrying into the kehal Hashem. He can convert if not Jewish, and if already Jewish may marry a giyoret, but not into kehal Hashem.

Another thought, and interpretation occurred to me — that being wounded in the private parts is not a pegam, but rather a mitigating circumstance. At least in the hava amina. A bastard cannot marry into the kehal Hashem so as not to propagate the mamzerut. And similar, there is this pegam for several generations for the Ammoni and Moavi. But what if someone is evidently, and outwardly infertile. He would not be able to propagate the mamzerut, or thepegam of these other nations. Perhaps then he should be able to marry into kehal Hashem. All he would get out of it would likely be companionship. Could he perhaps marry into kehal Hashem. The answer is a definite no. And the nafka mina is what of a perfectly kosher Israelite who is already in the kehal Hashem? The pasuk would then not be addressing him at all.

These are just my speculations. Obviously not halacha lemaaseh, and I am not really endorsing this as the plausible interpretation of these pesukim.

Shoe Tossing As A Sign Of Contempt, and How It Intersects With Torah and Midrash

So fairly recently, an Iraqi journalist tossed his shoes at Bush at a press conference and shouted “It is the farewell kiss, you dog.” (Making him a hero in the Arab world, and inspiring this Norwegian Flash game.) Apparently, tossing shoes, or showing the bottom of one’s shoes, is a way of denigrating someone in Arab culture.

If Wikipedia is to be trusted,

The shoe represents the lowest part of the body (the foot) and displaying or throwing a shoe at someone or something in Arab cultures denotes that the person or thing is “beneath them.” Showing the bottom of one’s feet or shoes (for example, putting one’s feet up on a table or desk) in Arab cultures is considered an extreme insult.[citation needed] Examples include Iraqi citizens smacking torn-down posters of Saddam Hussein with their shoes, and the depiction of President of the United States George H. W. Bush on a tile mosaic of the floor of the Al-Rashid Hotel’s lobby, forcing all visitors entering the hotel to walk on Bush’s face to enter the hotel.

I wonder if we can connect this to midrashim and or psukim, to grant us some additional insight. There is the famous midrash about the contract between Mordechai and Haman made in the desert:

The two delegates set out on their way to Persia at the same time. As their way took them through a desert they brought with them provisions for the journey. Haman, who was greedy, ate his all at once, while Mordechai allowed enough to remain for the whole journey. Soon Haman became very hungry and begged Mordechai to share the remainder of his fare with him. At first, Mordechai refused his request, but later, he relented on the condition that Haman agree to become Mordechai’s slave. As they had no paper to upon which to write a contract, Haman wrote the following pledge upon the sole of Mordechai’s shoe: “I, Haman the Agagite, have sold myself to Mordechai as his slave in consideration of bread.”

Since then Haman could never forgive Mordechai for his humiliation, and he was in constant dread lest Mordechai enforce his slave claim over him.

Mordechai, of course, never dreamed of doing it. Later, however, when Haman became Prime Minister, and demanded that Mordechai bow down to him, Mordechai would merely remove his shoe and wave it at him. Haman had to hold his tongue and keep silent. The enraged Haman swore he would destroy Mordechai and all the Jews.

The fact that the contract was on the shoe, and the fact that Mordechai showed Haman the bottom of his shoe to demonstrate that Haman was below him could now, perhaps, take on an added significance.

Perhaps it can also give us added insight into chalitza.

ט וְנִגְּשָׁה יְבִמְתּוֹ אֵלָיו, לְעֵינֵי הַזְּקֵנִים, וְחָלְצָה נַעֲלוֹ מֵעַל רַגְלוֹ, וְיָרְקָה בְּפָנָיו; וְעָנְתָה, וְאָמְרָה, כָּכָה יֵעָשֶׂה לָאִישׁ, אֲשֶׁר לֹא-יִבְנֶה אֶת-בֵּית אָחִיו. 9 then shall his brother’s wife draw nigh unto him in the presence of the elders, and loose his shoe from off his foot, and spit in his face; and she shall answer and say: ‘So shall it be done unto the man that doth not build up his brother’s house.’ י וְנִקְרָא שְׁמוֹ, בְּיִשְׂרָאֵל: בֵּית, חֲלוּץ הַנָּעַל. {ס} 10 And his name shall be called in Israel the house of him that had his shoe loosed. {S}

Spitting clearly has connotations of degredation and contempt. And the fact that this fame follows him, as bet chalutz hanaal — this seems to carry the same message. If so, perhaps we can say that loosening his shoe also is some sort of insult, as penalty for refusing to perform yibbum. And this might work well with the role of the shoe as it occurs in Arab culture.

_____________________

Cutting off her hand??

It is shocking. The Torah is supposed to be a moral document, yet it appears to endorse cutting off the hand of a woman for the mere offense of touching a man’s testicles while in a brawl, such as to cause him embarrassment. Yet that view is one which adopts Chazal’s view of the offense and a literal view of the penalty. Chazal are the ones who say this is punishment for embarrassment (though they may also quite likely hold there was physical damage as well), and they are the same ones who say that the punishment is monetary compensation.

When we go literal, it is more than possible that the offense was crushing his testicles, thus depriving him of his ability to have children, his ability to pass on his inheritance and his name, and depriving him from being able to marry into the kahal Hashem. Indeed, I would point out there it follows directly after yibbum vs. chalitza in the parsha. Also, such greivous injury can cause death. In comparing to Ancient Near Eastern codes, we see in the code of Hanmurabi that if she crushes one testicle, she loses a finger, but if she crushes both, she is blinded in both eyes.

On a literal level, is the punishment truly so brutal when compared with the crime? Not that I am endorsing it. But Lorena Bobbit made headlines for something similar. And the Torah was given within the values of the time, such that it details reforms within the institution of slavery, for the protection of the slaves, yet keeps the institution. If in general the Torah replaces an eye for an eye with money via the ability to pay kofer (an expansion on this idea later), if here, for such a brutal crime, kofer is disallowed, perhaps as an extreme yet mostly theoretical measure so that no woman would come to do this, is it really so brutal and immoral?

And if later general society has moved past this in the general case, and has devised other suitable punishments and preventative measures, and where there is an evolving morality, would an option not to enforce this mandate in a different cultural setting really be a betrayal of what the Torah already sets out to do? I don’t think so. And if the phrasing of the pasuk also lets us derive other derashot, so be it.

In a topic such as this, it is interesting to see what the Karaites have to say for themselves. For they are very frum, in considering this Torat Moshe, mipi hagevurah, yet at the same time taking it literally. To us Perushim, the ethical dilemma need not cause a crisis of faith, since we are used to taking this pasuk non-literally, in accordance with Chazal’s interpretation (or rather, interpretations). But what will the Karaites do?

We could find the answers in the writings of the Karaite scholar Aharon ben Yosef, and in the super-commentary upon him, in this book from JNUL, pages 243-244. (Aharon ben Yosef above, supercommentary below.)

As far as I can make out, mevushav is a euphemism for his testicles. And your eye not sparing means that in this case, you do not take kofer. The interesting implication is that in other cases, one would take kofer. Thus, an eye for an eye means money, since people will pay the fine rather than lose their eye. Further, he seems to consider this different from the other maimings, which suggests that he indeed sees this as crushing his testicles. (Though the supercommentary may not realize this.) Why not treat it like other maimings? For she did such a grievous act and great sin to cast forth her hand in the private place. And otherwise we would think {?} that she could redeem her hand with kofer. So they hold there is actual cutting off of the hand, but give reasons to justify why this is a reasonable punishment.

Ibn Ezra (who was earlier than Aharon ben Yosef) also interpret this pasuk similarly, yet restricts when to impose the hand-cutting even further:

כי ינצו -

הפך כי ישבו אחים יחדו ואלה האנשים זרים, או אחים.

במבושיו -ביציו, מגזרת בושה והוא עזות מצח, לגלות דבר הנסתר שהוא ערוה, גם הוא מקום מסוכן.

[כה, יב]

וקצותה את כפה -

כמו: עין תחת עין אם לא תפדה, כפה תקוץ.

לא תחוס עינך -

אם היתה ענייה.

Thus, he does not seem to say explicitly that the testicles were crushed, though he does say it is a makom mesukan. Yet there is kofer even here, just like other “eye for an eye” cases. But the “eye shall not spare” would seem to be where she is poor and cannot afford kofer — then, one would actually cut off her hand. (I could imagine then halachic workarounds in which she accepts it upon herself as a chov, such that the kofer is halachically and officially paid off, but then there is a debt.)

Shadal endorses the idea I mentioned in another post, that she is still grabbed on, and there is danger to life, such that any passerby should chop off her hand, rather than killing her, as she has the din rodef. But then he later reverses himself and suggests something like Ibn Ezra, that this is imposed by the court, as an ayin tachat ayin, as she has no testicles, such that the hand would take the place of the testicles. (I would suggest that since one could not do a literal ayin tachat ayin, one could look instead to the offending limb, which was the hand she stretched forth.) And in connecting it to ayin tachat ayin, Shadal seems also to be enabling kofer, for he maintains there that kofer is allowed by limbs, something provable from the fact that the Torah excludes specifically taking kofer for taking a nefesh. See inside. Anyway, here is the local Shadal.

יב ] וקצתה : מצוה על כל מי שנמצא שם ורואה האיש ההוא בסכנה , והלא היא עצמה להציל את בעלה עשתה , ולמה לא יותר לה להצילו כדרך שמותר וגם מצווה לאחרים להציל את המכה מיד ? - היא עשתה ברמייה כי אין אדם שיחשוב כזאת על אשה , שתעיז פניה כל כך , ואם היתה עושה בשאר דרכים ובלא רמייה , לא היה בזה רע . וגם תנא קמא בספרי ( כי תצא פיסקא רצ “ ג ) לקח הדבר כפשוטו ולא בממון , אמנם שתשלם דמי כפה לא נהירא ,ויותר היה ראוי שתשלם דמי מבושיו , ואם מת בה , תהיה חייבת מיתה . אבל אם הפחידוה ושמטה ידה , ייתכן , שתשלם דמי כפה שהיתה ראויה להיקצץ . והנה אחר שדיבר על מעשה רמייה זה , הזכיר רמייה אחרת שהיא אבן ואבן איפה ואיפה , ולחזק שנאת הרמייה הזכיר ענין עמלק , שעשה בעקבה ויזנב בך כל הנחשלים אחריך , וציוה להכריתו ולזכור המשפט הנעשה בו , וזה למען נתרחק ממעשה רמייה . והיום י’ שבט תר”ב נ”ל כי “ וקצתה את כפה “הוא עונש ב”ד , על דרך ( שמות כ”א כ”ז ) עין תחת עין , ולפי שאין לאשה מבושים יקצצו כפה , וקרובין לזה דברי ראב”ע.

Note: Not intended halacha lemaaseh. Heh. But also not as a final word as to the intent of the pesukim, or the theological implications of different meanings of these pesukim.

Shadal on The Betrothed Naarah

Another interesting Shadal in Ki Teitzei, on perek 22, about the laws of the naarah hameorasa. There are all sorts of features that a pashtan like him would like to take literally, but on the other hand, this would then be contrary to halacha, as well perhaps to one’s ethical sensibilities — halachically guided ethical sensibilities, perhaps. Up front, his peirush, and afterwards, my summary.

יז ] ופרשו השמלה : דברים ככתבן (דברי רבי אליעזר בן יעקב כתובות מ”ו ע” א) אם כן איך ייתכן שיוציא אדם שם רע , מאחר שיודע שהשמלה מוכחת ? אבל כוונת התורה להרחיק שלא יהיה איש מוציא שם רע על אשתו , והאמינה ראיית הדמים , אף על פי שאולי יהיו מזוייפים , כדי לתת שלום בבית ולהציל ממיתה נערה שזינתה בבית אביה , אשר לפי התורה אין לה עונש , רק לפי מראה עיני אנשי הדורות ההם , אם היתה נישאת בחזקת בתולה , היתה זו מרמה שחייבים עליה מיתה , והתחכמה התורה להמתיק המידה הקשה הזאת בצוותה שנאמין לדמים , אעפ”י שהיא ראיה שיש אחריה פיקפוק . [ כא ] לזנות בית אביה : לפי הפשט זינתה בבית אביה קודם אירוסין , ואחר שזינתה היה לה להודיעו שאיננה בתולה , והנה רימתה אותו בדבר שהיה גדול כל כך בעיניהם בימים ההם שהיה משפטה למות . ואם כדברי רבותינו ( ספרי כי תצא פיסקא ר ” מ ) היה לו לומר לנאוף . ( עיין בכורי העתים תקפ ” ז עמוד ר”ב ). ועוד הנה אם יש שם עדים שראוה מנאפת , אין ספק גם כן שראו עם מי ניאפה , והנה התורה לא הזכירה דבר על אודות הנואף , והיה לה לומר שגם את הנואף יהרוגו .

And so Shadal would like to take the spreading out of the sheet literally. (Indeed, the Muslims have such a practice.) And as such, the false accuser would surely be immediately exposed, so knowing there is this evidence, why would he make this charge? The answer is that, for reasons to become clear, the Torah does not want him to be laying out this charge. Furthermore, perhaps the blood is fake. The gemara speaks of instances in which she smuggles in stains in order to make it appear that there was dam besulim. So how can we lay this punishment upon him, based on possibly forged evidence. Again, Shadal claims that it is because the Torah does not want him to be laying the charge against her.

Why not? Well, this intersects with his second point. Shadal would claim that the naarah who had intercourse in her beit aviha was not a betrothed maiden, such that it was adultery, as per Chazal. For then it would say lin`of rather than liznos. Rather, she was an unmarried girl. And I would add the problem that there does not seem to be a death penalty elsewhere in Torah for a single girl who was seduced. Perhaps one can construct that the difference there is that she is not then trying to trick someone about whether she is a virgin or not. But without this explanation, it is hard to understand why apenuya should receive the death penalty here. Shadal has a further problem that if it means witnesses, then the witnesses also presumably saw the adulterer, and then the Torah should mention the execution of adulterer as well.

Shadal’s answer is that the Torah does not want her to be executed. It is rather the tribal custom of those backwards people. And rather than declaring that there is no death penalty in such a case, the Torah is surreptitiously imposing legal conditions such that it is unlikely to ever come to pass. Thus, the husband will be reluctant to accuse, in case he was wrong, or in case she forged the evidence. But if he does, then the Torah will not be able to do anything as the people of that generation, with their value system in place, condemns to death a single woman who lied to her husband about the status of her virginity. But the Torah itself does not command it.

I could actually see this as plausible, just looking at modern-day Arab/Muslim culture, and the virginity tests and the honor killings. Considering that many dinim in the Torah are easily read as measures of reformation, we can read this in a similar vein, moving the Jewish culture towards a more civilized society as idealized by the Torah.

However, I have reasons to doubt this explanation. And if we remove the explanations, we could either revert to Chazal’s explanation, or else not revert and be left with some difficult questions. My reasons to doubt this resolution: 1) There is nothing explicit in the pasuk to suggest that this is just what is happening — וְהוֹצִיאוּ אֶת-הַנַּעֲרָ אֶל-פֶּתַח בֵּית-אָבִיהָ, וּסְקָלוּהָ אַנְשֵׁי עִירָהּ בָּאֲבָנִים וָמֵתָה — rather than being a prescription for action.

2) כִּי-עָשְׂתָה נְבָלָה בְּיִשְׂרָאֵל, לִזְנוֹת בֵּית אָבִיהָ would seem to be a value judgement, that she did a nevalah.

3) There was the suggestion that the evil deed in the minds of the backward folk of that day was lying about the status of her virginity, rather than the intercourse outside the bounds of marriage. But כִּי-עָשְׂתָה נְבָלָה בְּיִשְׂרָאֵל, לִזְנוֹת בֵּית אָבִיהָ suggests that the nevalah was the zenus rather than the lying. 4) Finally, וּבִעַרְתָּ הָרָע מִקִּרְבֶּךָ certainly sounds like instruction; and it also seems to represent a value judgement, that this is indeed evil, which should be eliminated.

Update: See also Vesom Sechel’s take on the issue.

Shadal on Shiluach HaKan

There is a famous statement in the fifth perek of Brachot:

האומר על קן ציפור יגיעו רחמיך, ועל טוב ייזכר שמך, מודים מודים—משתקין אותו

and the gemara says, in Berachot 33b:

אלא על קן צפור יגיעו רחמיך מ”ט פליגי בה תרי אמוראי במערבא רבי יוסי בר אבין ורבי יוסי בר זבידא חד אמר מפני שמטיל קנאה במעשה בראשית וחד אמר מפני שעושה מדותיו של הקדוש ברוך הוא רחמים ואינן אלא גזרות

The second reason more certainly would be that we should not be understanding it as mercy. In terms of the first reason, perhaps it is mercy, but one should not mention it because of the kinah it would arouse, or else it is not because of Hashem’s mercy on the bird — for otherwise why would He favor one animal over another? At any rate, on the topic of sending away the mother bird, in parshat Ki Teitzei, Shadal writes:

כי יקרא קן צפור לפניך

: כשאדם קרב אל הקן , אלמלא רחמיה על בניה היתה האם נמלטת לנפשה ועוזבת אפרוחיה , אבל היא מאהבתה את בניה תשליך את נפשה מנגד ותעמוד שם להצילם ולא תברח למלט את נשפה . על כן אין ראוי לקחתה , שאם יהיה אדם לוקחה , יהיה מעשה הצדקה והאהבה שאהבה את בניה גורם לה רעה . והנה המכוון במצווה הזאת היא לכבד המידות הטובות ולקבוע בלבותינו כי לא יצא מצדקה הפסד , שאם היה מותר לקחת האם תחת אהבתה את בניה , היה מתרשם בלב האדם כי החמלה ענין גרוע ומנהג שטות הגורם רעה לבעליו , ועכשו שלקיחתה אסורה לנו , יקר תפארת מידת החמלה יוחק בלבנו חיקוי עמוק .

Shadal’s explanation is related, but not exactly identical. This is not an aspect of Hashem, and people, showing mercy — not taking the em with the banim. But it is to reinforce the idea of mercy, and to make sure that this attribute is not degraded in your eyes. Generally, a bird would flee when you approach the nest. But here, the em is rovetzet over it, in order to protect her children. You might take advantage of this, in order to capture the mother bird as well. But then, the idea would be engraved in the heart of man that mercy is a lowly matter and a silly custom, which causes evil to those who practice it. Therefore, taking the mother bird was prohibited to us, so that the attribute of chemla should be engraved deeply in our hearts.

Zachor: What Does It Matter That They Were Faint and Weary?

From the end of parshat Ki Teitzei:

יז זָכוֹר, אֵת אֲשֶׁר-עָשָׂה לְךָ עֲמָלֵק, בַּדֶּרֶךְ, בְּצֵאתְכֶם מִמִּצְרָיִם. 17 Remember what Amalek did unto thee by the way as ye came forth out of Egypt; יח אֲשֶׁר קָרְךָ בַּדֶּרֶךְ, וַיְזַנֵּב בְּךָ כָּל-הַנֶּחֱשָׁלִים אַחֲרֶיךָ—וְאַתָּה, עָיֵף וְיָגֵעַ; וְלֹא יָרֵא, אֱלֹהִים. 18 how he met thee by the way, and smote the hindmost of thee, all that were enfeebled in thy rear, when thou wast faint and weary; and he feared not God. יט וְהָיָה בְּהָנִיחַ ה אֱלֹהֶיךָ לְךָ מִכָּל-אֹיְבֶיךָ מִסָּבִיב, בָּאָרֶץ אֲשֶׁר ה-אֱלֹהֶיךָ נֹתֵן לְךָ נַחֲלָה לְרִשְׁתָּהּ—תִּמְחֶה אֶת-זֵכֶר עֲמָלֵק, מִתַּחַת הַשָּׁמָיִם; לֹא, תִּשְׁכָּח. {פ} 19 Therefore it shall be, when the LORD thy God hath given thee rest from all thine enemies round about, in the land which the LORD thy God giveth thee for an inheritance to possess it, that thou shalt blot out the remembrance of Amalek from under heaven; thou shalt not forget. {P} Why the stress on וְאַתָּה עָיֵף וְיָגֵעַ? Perhaps to stress Amalek’s treachery. Indeed, some commentators make something out of this theme. For an example, I just saw, Shadal connects the treachery of the woman grabbing the man’s mevushav, which he did not expect and was thus unfair, with trickery in the even vaaven, and finally with Amalek, as a reason for finishing them off.

I would suggest that there is a different theme at play here, either in place of the other, or as an addition. Namely, at the time, the Israelites were not able to stand up for themselves, for their own honor, and for the honor of Hashem. Why? Because at that time they were “faint and weary.” But once they get settled — בְּהָנִיחַ ה אֱלֹהֶיךָ לְךָ מִכָּל-אֹיְבֶיךָ מִסָּבִיב, בָּאָרֶץ אֲשֶׁר ה-אֱלֹהֶיךָ נֹתֵן לְךָ נַחֲלָה לְרִשְׁתָּהּ — then, they are to turn around and settle the score with Amalek. I think the contrast between the two pesukim is deliberate.

Spreading Out The Sheet, And Faking The Proof

In parshas Ki Seitzei, we read {Devarim 22}:

יז וְהִנֵּה-הוּא שָׂם עֲלִילֹת דְּבָרִים לֵאמֹר, לֹא-מָצָאתִי לְבִתְּךָ בְּתוּלִים, וְאֵלֶּה, בְּתוּלֵי בִתִּי; וּפָרְשׂוּ, הַשִּׂמְלָה, לִפְנֵי, זִקְנֵי הָעִיר. 17 and, lo, he hath laid wanton charges, saying: I found not in thy daughter the tokens of virginity; and yet these are the tokens of my daughter’s virginity.’ And they shall spread the garment before the elders of the city. As Rashi notes, this is a figurative expression:

and they shall spread the garment This is a figurative expression, meaning: they shall clarify the matter as [“clear”] as a [new] garment. — [Sifrei 22:92, Keth. 46a]

But in that same gemara in Ketubot 46a, it is actually a dispute between the Sages and Rabbi Eliezer ben Yaakov, with the latter claiming it as literal.

Shadal also takes it literally, writing:

ופרשו השמלה

: דברים ככתבן ( דברי רבי אליעזר בן יעקב כתובות מ “ ו ע “ א ) אם כן איך ייתכן שיוציא אדם שם רע , מאחר שיודע שהשמלה מוכחת ? אבל כוונת התורה להרחיק שלא יהיה איש מוציא שם רע על אשתו , והאמינה ראיית הדמים, אף על פי שאולי יהיו מזוייפים , כדי לתת שלום בבית ולהציל ממיתה נערה שזינתה בבית אביה , אשר לפי התורה אין לה עונש , רק לפי מראה עיני אנשי הדורות ההם , אם היתה נישאת בחזקת בתולה , היתה זו מרמה שחייבים עליה מיתה , והתחכמה התורה להמתיק המידה הקשה הזאת בצוותה שנאמין לדמים , אעפ “ י שהיא ראיה שיש אחריה פיקפוק .

That is, it was a reform issued by the Torah to the existing practice of the time. Back then, an accusation would condemn the girl. And further, would condemn a girl who lost her virginity before betrothal, and before marriage. Since she married under the presumption of being a virgin, disproof of this presumption would lead to death. Even though the Torah itself would not demand the death penalty in such a case. (In saying this, Shadal is sidestepping issues of literal reading vs. practiced halacha: avoiding saying that the Torah was speaking of a betrothed woman who cheated; or that the Torah demands the death penalty for a single woman who had intercourse out of marriage.) Here, it innovates to protect the woman that such proof is accepted, even though it might be possible to fake this proof.

The gemara records this in practice, usually with practical monetary results: The ketuba for a virgin is 200 while a non-virgin 100 zuz. But it accepts all sorts of excuses in this regard for the loss (or non-sensing) of the hymen. And some women, records the Talmud, used to bring in a stained kerchief in order to fake it.

Nowadays, I have not heard of any such case brought before a bet din: because they do not rule on capital matters; (because there is no time between betrothal and marriage anyway, though this is irrelevant); because practically, the ketuba is not really collected; or because our society has evolved out of this.

At any rate, Muslims apparently do keep this. And it is for all women, where they must prove they are virgins, to the female relatives of the groom. And there are all sorts of negative repercussions which result. All of which gives good backing, IMHO, to Shadal’s explanation. Though I think it possible that since the Koran was post-Torah, they took a literal interpretation of it and ran with it.

Anyway, here is a news article about it, and about a trend in which they undergo an operation to restore the hymen, so as to be able to show the bloody sheets, and so as not to get murdered in an honor killing:

It is a drastic and costly measure but as she takes her husband’s hand in marriage, she knows it is one which may - quite literally - save her life.

The horror and outrage that would ensue if it was discovered she had already slept with a man would be so damning that her own strictly religious relatives might kill her rather than face public shame.

“My virginity was restored in a delicate operation just last week, and I honestly view it as life-saving surgery,” says Aisha.

“If my husband cannot prove to his family that I am a virgin, I would be hounded, ostracised and sent home in disgrace. My father, who is a devout Muslim, would regard it as the ultimate shame.

“The entire family could be cast out from the friends and society they hold dear, and I honestly believe that one of my fanatically religious cousins or uncles might kill me in revenge, to purge them of my sins. Incredible as it may seem, honour killings are still accepted within our religion.

…

“But as I said goodbye to my future husband and flew back to Birmingham, I really started to panic about my virginity.

“Muslim tradition demands that on my wedding night, my bridegroom will take the bloodied sheets to show his mother and aunts to prove that his bride is pure.

“If I do not bleed, the wedding will be annulled, and I will be sent home in disgrace.

“This was all I could think about. How could I fool my own husband and his family into believing that I was pure?”

Through friends, Aisha heard of a new operation to “restore” a torn hymen, and, in her desperation, she went onto the internet to find out more.

Ki Teitzei: Taking the Mill or Upper Millstone to Pledge

In Devarim 24:6:

ו לֹא-יַחֲבֹל רֵחַיִם, וָרָכֶב: כִּי-נֶפֶשׁ, הוּא חֹבֵל. {ס 6 No man shall take the mill or the upper millstone to pledge; for he taketh a man’s life to pledge. {S} What is thisnefesh hu chovel? A standard explanation (see e.g. Rashi, citing Bava Metzia) is that it is used for preparation of food, ochel nefesh, and one should not take that as a pledge. Thus, Rashi:

One shall not take the lower or the upper millstone as security [for a loan] If [a creditor] comes to the court to demand security for a debt [for which no security had previously been required], he may not take as security articles used in the preparation of food. — [B.M. 115a]

Another explanation is that it is poetic overstatement. You are taking his livelihood. How will he make more money to repay his loan and get his pledge back? You are thus taking his life as a pledge.

Indeed, I would put forth that perhaps chovel is a pun. It means “take as a pledge,” but it also means “wound, injure.” Thus, he is wounding the fellow’s life, by taking this pledge.

Ki Teitzei: Collecting Interest

An unfair, preferential law? Devarim 23:20-21:

כ לֹא-תַשִּׁיךְ לְאָחִיךָ, נֶשֶׁךְ כֶּסֶף נֶשֶׁךְ אֹכֶל: נֶשֶׁךְ, כָּל-דָּבָר אֲשֶׁר יִשָּׁךְ. 20 Thou shalt not lend upon interest to thy brother: interest of money, interest of victuals, interest of any thing that is lent upon interest. כא לַנָּכְרִי תַשִּׁיךְ, וּלְאָחִיךָ לֹא תַשִּׁיךְ—לְמַעַן יְבָרֶכְךָ יְהוָה אֱלֹהֶיךָ, בְּכֹל מִשְׁלַח יָדֶךָ, עַל-הָאָרֶץ, אֲשֶׁר-אַתָּה בָא-שָׁמָּה לְרִשְׁתָּהּ. {ס} 21 Unto a foreigner thou mayest lend upon interest; but unto thy brother thou shalt not lend upon interest; that the LORD thy God may bless thee in all that thou puttest thy hand unto, in the land whither thou goest in to possess it. {S} If taking interest upon a loan is such an evil thing to do, why allow them to do it to the gentiles? The answer is that taking interest is not a “sin,” or an “evil” thing in and of itself. Much of Western society is based on taking interest. Banks offer loans for things like mortgages, and collect interest, and thus profit and make their money work for them. No, interest is not evil. However, the Torah is talking about building a society with the value of fraternity. You see your “brother” needs help, assist him, be it with his lost article or with his struggling under a load. Thus, to someone who is not part of this religious, moral society, there is no ethical issue with dealing in interest. This is just business, as they themselves conduct it. Among coreligionists, however, trying to build up a righteous, fraternal, society, help a brother out! If he needs money and you have it, let him borrow it with the fullness of sincerity and helpfulness - help his wealth increase. And your fellow will do the same to you.

Thus, the LORD thy God may bless thee in all that thou puttest thy hand unto, in the land whither thou goest in to possess it.

Ki Teitzei: Not Giving Up An Escaped Slave

A curious pasuk in Ki Teitzei, in Devarim 23:16:

טז לֹא-תַסְגִּיר עֶבֶד, אֶל-אֲדֹנָיו, אֲשֶׁר-יִנָּצֵל אֵלֶיךָ, מֵעִם אֲדֹנָיו. 16 Thou shalt not deliver unto his master a bondman that is escaped from his master unto thee; יז עִמְּךָ יֵשֵׁב בְּקִרְבְּךָ, בַּמָּקוֹם אֲשֶׁר-יִבְחַר בְּאַחַד שְׁעָרֶיךָ—בַּטּוֹב לוֹ; לֹא, תּוֹנֶנּוּ. {ס} 17 he shall dwell with thee, in the midst of thee, in the place which he shall choose within one of thy gates, where it liketh him best; thou shalt not wrong him. {S} Yet the Torah allows for slavery, and legislates it! If this person sold himself into slavery, or was rightfully purchased from another, how can you not stand up for what is legal?

Indeed, in the same parsha, in the previous perek, in another context, we have {Devarim 22}:

א לֹא-תִרְאֶה אֶת-שׁוֹר אָחִיךָ אוֹ אֶת-שֵׂיוֹ, נִדָּחִים, וְהִתְעַלַּמְתָּ, מֵהֶם: הָשֵׁב תְּשִׁיבֵם, לְאָחִיךָ. 1 Thou shalt not see thy brother’s ox or his sheep driven away, and hide thyself from them; thou shalt surely bring them back unto thy brother. ב וְאִם-לֹא קָרוֹב אָחִיךָ אֵלֶיךָ, וְלֹא יְדַעְתּוֹ—וַאֲסַפְתּוֹ, אֶל-תּוֹךְ בֵּיתֶךָ, וְהָיָה עִמְּךָ עַד דְּרֹשׁ אָחִיךָ אֹתוֹ, וַהֲשֵׁבֹתוֹ לוֹ. 2 And if thy brother be not nigh unto thee, and thou know him not, then thou shalt bring it home to thy house, and it shall be with thee until thy brother require it, and thou shalt restore it to him. ג וְכֵן תַּעֲשֶׂה לַחֲמֹרוֹ, וְכֵן תַּעֲשֶׂה לְשִׂמְלָתוֹ, וְכֵן תַּעֲשֶׂה לְכָל-אֲבֵדַת אָחִיךָ אֲשֶׁר-תֹּאבַד מִמֶּנּוּ, וּמְצָאתָהּ: לֹא תוּכַל, לְהִתְעַלֵּם. {ס} 3 And so shalt thou do with his ass; and so shalt thou do with his garment; and so shalt thou do with every lost thing of thy brother’s, which he hath lost, and thou hast found; thou mayest not hide thyself. {S} If you have a legal obligation to return your fellow’s lost object, not to take it for yourself and not to just leave it alone, how can the Torah in the next perek instruct you not only to not return his runaway slave, and indeed to help the runaway slave stay away and start a new life?

The answer is obvious, but asking the questions helps clarify it. Whatever the Torah’s general perspective on slavery (in in general it stands in with reforms to standardize fair treatment of servants), there is law and then there is what is morally right. And regardless of the statutes about property, we are talking about a vulnerable human being here, looking to improve his own life and to escape a life of servitude. As we say elsewhere in the parsha, remember your own national history in Egypt. Of course you don’t betray him and give him over to his master. To do so would be evil, rather than legal, and the law recognizes this. You shall not wrong him.

Ki Teitzei: When you go to war on your enemy

Just because you win does not mean that you get to do whatever you like. The rules don’t just go out the window. Rather, you must behave in a prescribed, moral manner.

That is a possible message in the beginning of Ki Teitzei, beginning in Devarim 21:10:

י כִּי-תֵצֵא לַמִּלְחָמָה, עַל-אֹיְבֶיךָ; וּנְתָנוֹ ה אֱלֹקֶיךָ, בְּיָדֶךָ—וְשָׁבִיתָ שִׁבְיוֹ. 10 When thou goest forth to battle against thine enemies, and the LORD thy God delivereth them into thy hands, and thou carriest them away captive, יא וְרָאִיתָ, בַּשִּׁבְיָה, אֵשֶׁת, יְפַת-תֹּאַר; וְחָשַׁקְתָּ בָהּ, וְלָקַחְתָּ לְךָ לְאִשָּׁה. 11 and seest among the captives a woman of goodly form, and thou hast a desire unto her, and wouldest take her to thee to wife; יב וַהֲבֵאתָהּ, אֶל-תּוֹךְ בֵּיתֶךָ; וְגִלְּחָה, אֶת-רֹאשָׁהּ, וְעָשְׂתָה, אֶת-צִפָּרְנֶיהָ. 12 then thou shalt bring her home to thy house; and she shall shave her head, and pare her nails; First, recognize that Hashem, giver of ethical and moral commands, has delivered them into your hand - וּנְתָנוֹ ה אֱלֹקֶיךָ בְּיָדֶךָ. It is not your own success, but something that God has granted you. Therefore, just because you see among the captives a desirable woman does not mean that you get to do whatever you want. Indeed, there are rights guaranteed to that captive, in terms of allowing her to first mourn, and then granting her the role of a full wife, with all the rights that entails. Even if one disagrees with the particulars of the treatment, the general message is an important one, in war and in life.

We might also well take the homiletic interpretation, in which the “enemy” is your evil inclination, and you are waging a war to harness it, and this case ofeshet yefat toar is one such example.

Request for Ki Teitzei: An Explanation of the Krei/Ketiv of Naar/Naarah

I’m bumping this up again, to see if I get any response. I received the following query by email. I have my own response, but thought I’d give it some airtime. Perhaps someone has heard of other, more classic, explanations.

The question:

Could you ask if anyone reading your blog has sen why the word hanaarah appears without a heh so aften in the torah, as in Parshat Ki Tayzei?

My reply was essentially that it is not so much a krei/ketiv as a spelling convention. For example, all over Tanach we have the TA ending with just a tav at the end — e.g. veahavta, while the word ATA is spelled אתה. The same for chaf sofit, as in uvelechtecha, where there is no heh after it. (In Tehillim from Dead Sea Scrolls, I believe they put the heh ending after the chaf.) The same for nun sofit on occasion. It may well be that in this particular context of a RA ending, no heh is required, and so it is naara with no heh after it. The pronunciation is identical, since the hehis just an em hakeria.

However, it certainly makes sense that other explanations have been given over the years. And, why specifically in Ki Teitzei (besides frequency of naara), why specifically naarah, and why the exception in hanaarah (with the definite article) in Devarim 22:19. Is anyone familiar with any alternate explanations?

Thanks,

Josh

Daf Yomi Yevamot: A Slightly Non-Normative Interpretation of Machzir Grushato

The topic of machzir grushato, remarrying one’s ex-wife — Devarim 24, in Ki Teitzei:

א כִּי-יִקַּח אִישׁ אִשָּׁה, וּבְעָלָהּ; וְהָיָה אִם-לֹא תִמְצָא-חֵן בְּעֵינָיו, כִּי-מָצָא בָהּ עֶרְוַת דָּבָר—וְכָתַב לָהּ סֵפֶר כְּרִיתֻת וְנָתַן בְּיָדָהּ, וְשִׁלְּחָהּ מִבֵּיתוֹ. 1 When a man taketh a wife, and marrieth her, then it cometh to pass, if she find no favour in his eyes, because he hath found some unseemly thing in her, that he writeth her a bill of divorcement, and giveth it in her hand, and sendeth her out of his house, ב וְיָצְאָה, מִבֵּיתוֹ; וְהָלְכָה, וְהָיְתָה לְאִישׁ-אַחֵר. 2 and she departeth out of his house, and goeth and becometh another man’s wife, ג וּשְׂנֵאָהּ, הָאִישׁ הָאַחֲרוֹן, וְכָתַב לָהּ סֵפֶר כְּרִיתֻת וְנָתַן בְּיָדָהּ, וְשִׁלְּחָהּ מִבֵּיתוֹ; אוֹ כִי יָמוּת הָאִישׁ הָאַחֲרוֹן, אֲשֶׁר-לְקָחָהּ לוֹ לְאִשָּׁה. 3 and the latter husband hateth her, and writeth her a bill of divorcement, and giveth it in her hand, and sendeth her out of his house; or if the latter husband die, who took her to be his wife; ד לֹא-יוּכַל בַּעְלָהּ הָרִאשׁוֹן אֲשֶׁר-שִׁלְּחָהּ לָשׁוּב לְקַחְתָּהּ לִהְיוֹת לוֹ לְאִשָּׁה, אַחֲרֵי אֲשֶׁר הֻטַּמָּאָה—כִּי-תוֹעֵבָה הִוא, לִפְנֵי ָה; וְלֹא תַחֲטִיא, אֶת-הָאָרֶץ, אֲשֶׁר ה אֱלֹהֶיךָ, נֹתֵן לְךָ נַחֲלָה. {ס} 4 her former husband, who sent her away, may not take her again to be his wife, after that she is defiled; for that is abomination before the LORD; and thou shalt not cause the land to sin, which the LORD thy God giveth thee for an inheritance. {S} What is the cause from this prohibition? I have always read it as law intended to prevent legalized “swinging.” In swinging, couples swap partners, which would be considered adultery. Perhaps, they thought, they could legally divorce, marry the other person, then divorce and remarry. This closes this loophole and possibility. And this becomes law even where it is not the case. However, another, slightly non-normative interpretation struck me as I was reading through Yevamot:

תניא רבי יוסי בן כיפר אומר משום רבי אליעזר בן עזריה המחזיר גרושתו מן הנשואין אסורה מן האירוסין מותרת שנאמר אחרי אשר הוטמאה

וחכמים אומרים אחד זה ואחד זה אסורה אלא מה אני מקיים אחרי אשר הוטמאה לרבות סוטה שנסתרה

They learnt {in a brayta}: Rabbi Yossi ben Kipper cites Rabbi Eliezer ben Azarya: If one remarries his ex-wife, where there was an intervening marriage {in full, with nisuin}, she is forbidden; where there was an intervening betrothal, she is permitted, for it is stated {Devarim 24:4}:

ד לֹא-יוּכַל בַּעְלָהּ הָרִאשׁוֹן אֲשֶׁר-שִׁלְּחָהּ לָשׁוּב לְקַחְתָּהּ לִהְיוֹת לוֹ לְאִשָּׁה, אַחֲרֵי אֲשֶׁר הֻטַּמָּאָה—כִּי-תוֹעֵבָה הִוא, לִפְנֵי ה; וְלֹא תַחֲטִיא, אֶת-הָאָרֶץ, אֲשֶׁר ה אֱלֹהֶיךָ, נֹתֵן לְךָ נַחֲלָה. {ס} 4 her former husband, who sent her away, may not take her again to be his wife, after that she is defiled; for that is abomination before the LORD; and thou shalt not cause the land to sin, which the LORD thy God giveth thee for an inheritance. And the Sages say: Both this and that {either intervening nisuin or interveningkiddushin} is forbidden. If so, how do I establish “after that she is defiled”? To include a sotah who secluded herself {with the man}.

וקי”ל כרבנן דאמרי בין מן הנשואין בין מן האירוסין אסורה ואם החזירה הולד כשר דכתיב כי תועבה היא היא תועבה ואין בניה תועבין והני מילי ישראל אבל כהן הולד חלל ואפילו לא נתארסה

וגרושה שזינתה לאחר שנתגרשה מותרת לחזור לבעלה מאי טעמא הויה ואישות כתיבה בה:

And we establish like the Sages who say that whether from marriage or from betrothal, she is forbidden, and if he retakes her as a wife, the child born is valid {and is not a mamzer}, for it is written

ד לֹא-יוּכַל בַּעְלָהּ הָרִאשׁוֹן אֲשֶׁר-שִׁלְּחָהּ לָשׁוּב לְקַחְתָּהּ לִהְיוֹת לוֹ לְאִשָּׁה, אַחֲרֵי אֲשֶׁר הֻטַּמָּאָה—כִּי-תוֹעֵבָה הִוא, לִפְנֵי ה; וְלֹא תַחֲטִיא, אֶת-הָאָרֶץ, אֲשֶׁר ה אֱלֹהֶיךָ, נֹתֵן לְךָ נַחֲלָה. {ס} 4 her former husband, who sent her away, may not take her again to be his wife, after that she is defiled; for that is abomination before the LORD; and thou shalt not cause the land to sin, which the LORD thy God giveth thee for an inheritance. {S} {toevah hi} - she is an abomination, but her children are not abominations.

According to Rabbi Yossi ben Kipper, we understand what אַחֲרֵי אֲשֶׁר הֻטַּמָּאָה means. In nisuin, there is consummation of the marriage with sexual intercourse. This was within the bounds of marriage, but it is somehow considered “defiled,” perhaps for the reason I outlined above.

But according to the Sages, this encompasses betrothal, which is just a formal procedure (giving over the ring). Perhaps this is a type of lo plug, drawing no distinctions in outlining the goal. But what is going on here? Why is she called “defiled” from the act of marrying, or betrothing, someone else?!

I would suggest the following, reading the pesukim somewhat in line with Bet Shammai. The first pasuk was:

א כִּי-יִקַּח אִישׁ אִשָּׁה, וּבְעָלָהּ; וְהָיָה אִם-לֹא תִמְצָא-חֵן בְּעֵינָיו, כִּי-מָצָא בָהּ עֶרְוַת דָּבָר—וְכָתַב לָהּ סֵפֶר כְּרִיתֻת וְנָתַן בְּיָדָהּ, וְשִׁלְּחָהּ מִבֵּיתוֹ. 1 When a man taketh a wife, and marrieth her, then it cometh to pass, if she find no favour in his eyes, because he hath found some unseemly thing in her, that he writeth her a bill of divorcement, and giveth it in her hand, and sendeth her out of his house, There is a famous dispute between Bet Shammai and Bet Hillel (which surfaced as a dispute between Jesus and the Pharisees) whether Judaism allows for no-fault divorce, based on how one reads עֶרְוַת דָּבָר and whether that is the only cause for divorce (as opposed to e.g. אִם-לֹא תִמְצָא-חֵן בְּעֵינָיו). Is this any matter, or only a matter pertaining to ervah, relations (with a derasha on ervah).

Reading like Bet Shammai, why did he divorce at first? For unseemly sexual conduct. Now, a sotah, an adulteress, is forbidden to both the husband and to the adulterer. The husband must divorce her. Thus, as the second pasuk states, וְיָצְאָה, מִבֵּיתוֹ; וְהָלְכָה, וְהָיְתָה לְאִישׁ-אַחֵר. She receives a divorce, and marries someone else — something she may do provided this is not the adulterer. Now, she receives her divorce from the second man — say, for similar reasons. Do we now say that while she may not remain married to her first husband, she may now remarry the first husband who, after all, was not the immediately recent betrayed party? The pasuk answers that she may not. לֹא-יוּכַל בַּעְלָהּ הָרִאשׁוֹן אֲשֶׁר-שִׁלְּחָהּ לָשׁוּב לְקַחְתָּהּ לִהְיוֹת לוֹ לְאִשָּׁה, אַחֲרֵי אֲשֶׁר הֻטַּמָּאָה. Where was the defiling? The answer is in the first pasuk — כִּי-מָצָא בָהּ עֶרְוַת דָּבָר — rather than in the second pasuk — וְהָלְכָה, וְהָיְתָה לְאִישׁ-אַחֵר!

And this may be the meaning of the Sages interpreting אַחֲרֵי אֲשֶׁר הֻטַּמָּאָה as a sotah shenistera.

Of course, the halacha is that the law would apply across the board, even in cases this were not so, but there would not be cases where this was not so according to Bet Shammai.

Is Rudy Giuliani an Adulterer?

No. I try to shy away from politics on parshablog, but am willing to digress to comment when it touches on Torah and parsha related issues.

Via town crier,

who links favorably to this blog, which claims the Guliani is a notorious adulterer.

Rudy Giuliani, one of the most pro-gay politicians in America, is now pulling a Mitt Romney and trying to pretend that he’s really not THAT pro-gay.

…

Sorry, Rudy. You’re an adulterer. You cheated on your wife - which wife was that? - blatantly, flagrantly, publicly. And now you want us to believe that you’re the great defender of marriage. You don’t get the right to defend other people’s marriages when you can’t defend your own. How serious a moral crime is adultery, Rudy? Well, since you’re doing this flip-flop in order to curry favor with America’s Taliban, let’s check the Bible, the King James version, to be precise (it’s the version my people use), and see what God has to say about adultery:

Leviticus 20:10 And the man that committeth adultery with another man’s wife, even he that committeth adultery with his neighbour’s wife, the adulterer and the adulteress shall surely be put to death.

Hmmm… surely put to death - now, no one is suggesting that you and your lover need to be put to death, Rudy, but the Bible makes it pretty clear that adultery is a big no-no. The kind of no-no that disqualifies you from suddenly, a few years after that adultery, becoming the great moral defender of marriage.

Let me quote that Biblical passage again, Rudy, just to get it straight:

the adulterer and the adulteress shall surely be put to death

Yeah, no ambiguity there, Rudy.

…

No ambiguity there, either.

You committed a moral crime that the Bible says is worthy of death. And now you want to turn around and sell yourself as the great purveyor of moral virtue in the very area, marriage, where you committed such a grievous offense.

I do not think that Jewish bloggers should parrot this, though. Let us consider point by point what this fellow says.

Firstly,

You cheated on your wife - which wife was that?

That snide comment reflects a particular view that no-fault divorce is illegitimate. This is a Catholic view, following the views of Jesus, who followed the views of Bet Shammai. But we rule like Bet Hillel, that allows divorce and remarriage. Rudy Giuliani may be Catholic (he attended a Catholic school), but I consider it here from a Torah perspective.

Second, the author here says that he cheated on his wife, and this is adultery. And he quotes a verse from Vayikra, Leviticus, which states

And the man that committeth adultery with another man’s wife, even he that committeth adultery with his neighbour’s wife, the adulterer and the adulteress shall surely be put to death.

Yet he ignores the words of the verse which state with another man’s wife. Specifically, the verse defines adultery as sleeping with another man’s wife.

There is a reason for this. The Torah allows polygamy, but not polyandry. A woman may not have two husbands simultaneously, but a man may have two wives simultaneously.

Indeed, in parshat Ki Teitzei {Devarim 21:15}, we read:

טו כִּי-תִהְיֶיןָ לְאִישׁ שְׁתֵּי נָשִׁים, הָאַחַת אֲהוּבָה וְהָאַחַת שְׂנוּאָה, וְיָלְדוּ-לוֹ בָנִים, הָאֲהוּבָה וְהַשְּׂנוּאָה; וְהָיָה הַבֵּן הַבְּכֹר, לַשְּׂנִיאָה. 15 If a man have two wives, the one beloved, and the other hated, and they have borne him children, both the beloved and the hated; and if the first-born son be hers that was hated; Judith Nathan had been married previously, but at the time she began dating Guliani, she was already divorced.

If you point out that Guliani did not marry Judith Nathan immediately, and so perhaps they engaged in relations out of wedlock, the fact that Guliani was married bears no relevance. The situation is simply that of a man having relations with an unmarried woman, which is spelled out elsewhere. The next chapter of Deuteronomy gives the case for rape:

כח כִּי-יִמְצָא אִישׁ, נַעֲרָ בְתוּלָה אֲשֶׁר לֹא-אֹרָשָׂה, וּתְפָשָׂהּ, וְשָׁכַב עִמָּהּ; וְנִמְצָאוּ. 28 If a man find a damsel that is a virgin, that is not betrothed, and lay hold on her, and lie with her, and they be found; כט וְנָתַן הָאִישׁ הַשֹּׁכֵב עִמָּהּ, לַאֲבִי הַנַּעֲרָ—חֲמִשִּׁים כָּסֶף; וְלוֹ-תִהְיֶה לְאִשָּׁה, תַּחַת אֲשֶׁר עִנָּהּ—לֹא-יוּכַל שַׁלְּחָהּ, כָּל-יָמָיו. {ס} 29 then the man that lay with her shall give unto the damsel’s father fifty shekels of silver, and she shall be his wife, because he hath humbled her; he may not put her away all his days. and some pesukim in Shemot 22 give the law for seduction:

טו וְכִי-יְפַתֶּה אִישׁ, בְּתוּלָה אֲשֶׁר לֹא-אֹרָשָׂה—וְשָׁכַב עִמָּהּ: מָהֹר יִמְהָרֶנָּה לּוֹ, לְאִשָּׁה. 15 And if a man entice a virgin that is not betrothed, and lie with her, he shall surely pay a dowry for her to be his wife. טז אִם-מָאֵן יְמָאֵן אָבִיהָ, לְתִתָּהּ לוֹ—כֶּסֶף יִשְׁקֹל, כְּמֹהַר הַבְּתוּלֹת. {ס} 16 If her father utterly refuse to give her unto him, he shall pay money according to the dowry of virgins. {S} Of course, this is for a virgin, which she was not, but she was unmarried also, and so it is not considered adultery, but at the most, seduction.

Guliani’s wife charged adultery as a reason for divorce based on definitions within American law. But that is not the same as Jewish law. And she charged that in response to a hurtful reason that Guliani listed as the reason for the divorce.

The filing by Donna Hanover, 52, came more than a year and a half after Giuliani filed to divorce her, citing cruel and inhuman treatment. Hanover’s lawyer, Helene Brezinsky, said her client rejected the grounds on which Giuliani’s divorce was based.

“If there’s going to be a divorce, let’s have the truth about why — Rudy’s open and notorious adultery,” she said.

Meanwhile, the couple had been separated for quite a while, and it was major news when they were seen together. Within Jewish law, this might well be sufficient for Giuliani to not be considered married. Not to judge him as a Jew, for he is not, but to judge him as a Ben Noach, a gentile who follows the 7 Noachide rules, which contains an injunction against adultery.

That is, it is quite possible that we do not require formal divorce with papers, but being separated from each other, in a way that everyone knows they are separated, might well be sufficient, to declare him, and his then-wife, Donna Hanover, unmarried, such that any actions on their part would not be considered adultery.

Orthopraxy III - Remembering What Amalek Did

This is the third post in the series exploring whether halacha (and specifically halacha which is relevant today) requires belief or just action. That is, can someone who does not believe in God or who does not believe in the historicity of the Torah still keep all of halacha, and thus be Orthoprax? Or does part of the prax involve dox? Are there mitzvot which can only be when one believes?

(part 1, part 2 of the series)

The next commandment I want to consider it the positive Biblical commandment to remember what Amalek did. There is a pasuk in parshat Zachor, at the end of parshat Ki Teitzei, and the Rambam considers this a commandment. To cite him, in his hakdama to mitzvot aseh, he writes:

קפט לזכור מה שעשה עמלק תמיד, שנאמר “זכור, את אשר עשה לך עמלק” (דברים כה,יז).ר

And in sefer shoftim, hilchot melachim, perek 5, he writes:

ה וכן מצות עשה לאבד זרע עמלק, שנאמר “תמחה את זכר עמלק” (דברים כה,יט); ומצות עשה לזכור תמיד מעשיו הרעים ואריבתו, כדי לעורר איבתו—שנאמר “זכור, את אשר עשה לך עמלק” (דברים כה,יז). מפי השמועה למדו, “זכור” בפה; “לא, תשכח” (דברים כה,יט) בלב, שאסור לשכוח איבתו ושנאתו. Thus we see that it is a mitzvah to always remember Amalek’s evil deeds. This implies that one believes that the evil deeds mentioned in Torah indeed happened. This typically entails belief in Torah. One who believes it to be a myth cannot remember what they did. He can remember that there is a myth that they did X.

Furthermore, the Rambam continues with something mippi haShemu’a - (perhaps Torah sheBaal Peh, or as halacha leMoshe miSinai backed up byasmachta from the pasuk) - “Zachor” is to mention it in one’s mouth. “Lo Tishkach” - “do not forget” is in one’s heart, for it is required to maintain a specific emotional state regarding Amalek.

This is based on Megillah 18a, embedded in a discussion about whether one fulfills reading the megillah by merely thinking about it, and they want to show that actually reading it is required. To that end, they discuss Zachor and what it means in terms of Amalek. [דתניא] (דברים כה) זכור יכול בלב כשהוא אומר לא תשכח הרי שכחת הלב אמור הא מה אני מקיים זכור בפה…

Thus, clearly, we have a halacha that involves internal thought processes and beliefs. Thus, halacha does sometimes mandate certain emotions or beliefs - things internal to one’s heart/mind.

Can someone who does not believe Amalek did anything - because the Torah is a fictional account - can he really have these emotions? Can he be said to be actually remembering anything?

Ki Teitzei: VeKatzota Et Kappah

I’ve written about this in the past, but a recent news story lends evidence and credence to this particular midrashic interpretation:

In Devarim 25:11:

יא כִּי-יִנָּצוּ אֲנָשִׁים יַחְדָּו, אִישׁ וְאָחִיו, וְקָרְבָה אֵשֶׁת הָאֶחָד, לְהַצִּיל אֶת-אִישָׁהּ מִיַּד מַכֵּהוּ; וְשָׁלְחָה יָדָהּ, וְהֶחֱזִיקָה בִּמְבֻשָׁיו. 11 When men strive together one with another, and the wife of the one draweth near to deliver her husband out of the hand of him that smiteth him, and putteth forth her hand, and taketh him by the secrets; יב וְקַצֹּתָה, אֶת-כַּפָּהּ: לֹא תָחוֹס, עֵינֶךָ. {ס} 12 then thou shalt cut off her hand, thine eye shall have no pity. {S} There are several interpretations of this besides the obvious, most literal. One such interpretation which approaches quite close to peshat is that this is an application of din rodef. If you see someone trying to kill another, you may kill the murderer to prevent him from murdering the victim. If killing the attempted murderer is what must be done to prevent the act, you do that. If you can prevent the murder with a lesser injury (such as loss of a limb), you must do that instead. The assumption is that in the instance described in the Biblical verses, the woman is still grabbed on to him. If she crushes the man’s testicles, the man may well die from such a serious injury. Thus, you should cut off her hand if she is in the process of crushing. (And thus, it is not a punishment after the fact for permanent injury caused.) Your eye should not spare, because doing so is at the expense of the victim. What called this to mind was the following story reported in the press. A woman attacked her husband by crushing his testicles, and he was in critical condition but is now in stable condition. The woman could have faced attempted murder, according to police.

From 6abc and Action News:

A Philadelphia woman is in police custody, accused of an attack against her own husband. Police say she grabbed him in a jealous rage so hard that he lies hospitalized and she is facing charges.

…

Police say the wife believed her husband, Howard Randall, was cheating on her. So, while he slept, police say the woman grabbed and squeezed a part of his male anatomy.

Randall was rushed to Einstein Hospital with severe bleeding. Doctors first labeled his condition critical but he is now listed in stable condition at the hospital.

His wife now faces aggravated assault and other related charges. At one point, authorities said she could have faced attempted murder.

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Parshat Ki Teitzei #1: Eshet Yefat To`ar As Progressive Feminist Legislation

Parshat Ki Teitzei opens with the law of the Yefat To`ar, the beautiful female captive of battle who can be taken as a wife.

Devarim 21:10-14 states:

כִּי-תֵצֵא לַמִּלְחָמָה, עַל-אֹיְבֶיךָ; וּנְתָנוֹ יְהוָה אֱלֹהֶיךָ, בְּיָדֶךָ—וְשָׁבִיתָ שִׁבְיוֹ. וְרָאִיתָ, בַּשִּׁבְיָה, אֵשֶׁת, יְפַת-תֹּאַר; וְחָשַׁקְתָּ בָהּ, וְלָקַחְתָּ לְךָ לְאִשָּׁה. וַהֲבֵאתָהּ, אֶל-תּוֹךְ בֵּיתֶךָ; וְגִלְּחָה, אֶת-רֹאשָׁהּ, וְעָשְׂתָה, אֶת-צִפָּרְנֶיהָ.

וְהֵסִירָה אֶת-שִׂמְלַת שִׁבְיָהּ מֵעָלֶיהָ, וְיָשְׁבָה בְּבֵיתֶךָ, וּבָכְתָה אֶת-אָבִיהָ וְאֶת-אִמָּהּ, יֶרַח יָמִים; וְאַחַר כֵּן תָּבוֹא אֵלֶיהָ, וּבְעַלְתָּהּ, וְהָיְתָה לְךָ, לְאִשָּׁה.

וְהָיָה אִם-לֹא חָפַצְתָּ בָּהּ, וְשִׁלַּחְתָּהּ לְנַפְשָׁהּ, וּמָכֹר לֹא-תִמְכְּרֶנָּה, בַּכָּסֶף; לֹא-תִתְעַמֵּר בָּהּ, תַּחַת אֲשֶׁר עִנִּיתָהּ

“When thou goest forth to battle against thine enemies, and the LORD thy God delivereth them into thy hands, and thou carriest them away captive,

and seest among the captives a woman of goodly form, and thou hast a desire unto her, and wouldest take her to thee to wife;

then thou shalt bring her home to thy house; and she shall shave her head, and pare her nails;

and she shall put the raiment of her captivity from off her, and shall remain in thy house, and bewail her father and her mother a full month; and after that thou mayest go in unto her, and be her husband, and she shall be thy wife.

And it shall be, if thou have no delight in her, then thou shalt let her go whither she will; but thou shalt not sell her at all for money, thou shalt not deal with her as a slave, because thou hast humbled her.”

This halacha makes many uncomfortable in terms of our modern views of the rights and role of woman, and it made Chazal uncomfortable in terms of the way it allows a man to follow base instincts, which emotionally it strikes one that the Torah should forbid.

I will not cover the various approaches of Chazal to this mitzvah in this dvar Torah, but rather wish to focus on a single novel pshat interpretation of the mitzvah, and that is that the mitzvah is really a pro-woman piece of legislation that lays out the rights of the female captive.

If the Torah had not spoken at all, the natural assumption of the people would be that you could do with a captive whatever you desired. To the victor goes the spoils, and this included cattle, vessels, gold, and captives. Captives would become slaves, and if there were a beautiful captive woman, then one could take her as a wife, concubine, or perhaps slave/prostitute. I am assuming that was the status quo at the time the Torah was given in the contemporary legal/moral-ethical climate, and the Torah is coming to disabuse them of that notion and to grant the female captives certain rights.

(The assumption that female captives could be taken might be seen in Bemidbar 31:9, when the Israelites took captives from the women of Midyan:

וַיִּשְׁבּוּ בְנֵי-יִשְׂרָאֵל אֶת-נְשֵׁי מִדְיָן, וְאֶת-טַפָּם; וְאֵת כָּל-בְּהֶמְתָּם וְאֶת-כָּל-מִקְנֵהֶם וְאֶת-כָּל-חֵילָם, בָּזָזוּ.

“And the children of Israel took captive the women of Midian and their little ones; and all their cattle, and all their flocks, and all their goods, they took for a prey.”

for which they are criticized by Moshe, in 31:15-16:

וַיֹּאמֶר אֲלֵיהֶם, מֹשֶׁה: הַחִיִּיתֶם, כָּל-נְקֵבָה.

הֵן הֵנָּה הָיוּ לִבְנֵי יִשְׂרָאֵל, בִּדְבַר בִּלְעָם, לִמְסָר-מַעַל בַּה, עַל-דְּבַר-פְּעוֹר; וַתְּהִי הַמַּגֵּפָה, בַּעֲדַת ה.

“And Moses said unto them: ‘Have ye saved all the women alive? Behold, these caused the children of Israel, through the counsel of Balaam, to revolt so as to break faith with the LORD in the matter of Peor, and so the plague was among the congregation of the LORD.”

It seems they wanted them for the same purpose as what caused the plague. This though is not a good proof that this was the natural assumption, for perhaps this event took place after the parsha of Yefat To`ar was given.)

The first step of dealing with the Yefat To`ar is:

וַהֲבֵאתָהּ, אֶל-תּוֹךְ בֵּיתֶךָ; וְגִלְּחָה, אֶת-רֹאשָׁהּ, וְעָשְׂתָה, אֶת-צִפָּרְנֶיהָ

“then thou shalt bring her home to thy house; and she shall shave her head, and pare her nails;”

You take her to your home and treat her like a human being and a citizen. She does not live with the other captives in poor housing, and is no longer in chains.

I would not translate וְגִלְּחָה, אֶת-רֹאשָׁהּ as shaving her head, for in contexts we are treating her nicely, and furthermore, in context, the next pasuk states ְהֵסִירָה אֶת-שִׂמְלַת שִׁבְיָהּ מֵעָלֶיהָ, that she takes the rainment of captivity from off her.

There is a clear parallel to Yosef, when he was taken out of prison to be brought to Pharaoh and from there to greatness.

Bereishit 41:14:

וַיִּשְׁלַח פַּרְעֹה וַיִּקְרָא אֶת-יוֹסֵף, וַיְרִיצֻהוּ מִן-הַבּוֹר; וַיְגַלַּח וַיְחַלֵּף שִׂמְלֹתָיו, וַיָּבֹא אֶל-פַּרְעֹה.

“Then Pharaoh sent and called Joseph, and they brought him hastily out of the dungeon. And he shaved himself, and changed his raiment, and came in unto Pharaoh. “

First, they removed him from the pit, equivalent to taking the woman out of the captives quarters and into the man’s house. Then, he shaved. I would say not shaved exactly, but sheared. He cut his hair and became hygenic. Similarly, the beautiful captive gets to cut her hair which surely became unkempt during captivity. Finally, he changed from his prison clother. Similarly, the female captive gets to change into fresh garments, which, being a captive she probably did not get much opportunity to do.

In addition, the female captive cuts her nails (there is a machloket whether וְעָשְׂתָה, אֶת-צִפָּרְנֶיהָ means to cut her nails or grow them long, and for my purposes, I am assuming it means to cut them.)

More than being hygenic, fresh clothes, kempt hair, a manicure, being in a normal quiet house, all give the female captive some presence of mind. She can become settled.

Next, וְיָשְׁבָה בְּבֵיתֶךָ, וּבָכְתָה אֶת-אָבִיהָ וְאֶת-אִמָּהּ, יֶרַח יָמִים;

“and shall remain in thy house, and bewail her father and her mother a full month;”

War, the shock of her parents’ demise, and the sudden placement into captivity can be unsettling and traumatic. Here, we give her a chance to recover somewhat from the shock and horror, to mourn her parents, and to become somewhat emotionally grounded.

Then, וְאַחַר כֵּן תָּבוֹא אֵלֶיהָ, וּבְעַלְתָּהּ, וְהָיְתָה לְךָ, לְאִשָּׁה

Only after all this, וְאַחַר כֵּן , is she emotionally prepared for marriage, and you consummate the marriage, and she is to you a full wife, וְהָיְתָה לְךָ, לְאִשָּׁה, not a servant, and has all the rights and status of a wife.

As a result, if you later decide that you do not want to remain married to her, you divorce her like you would divorce a wife, and she goes from the marriage as a free citizen who can marry whomever she pleases:

וְהָיָה אִם-לֹא חָפַצְתָּ בָּהּ, וְשִׁלַּחְתָּהּ לְנַפְשָׁהּ, וּמָכֹר לֹא-תִמְכְּרֶנָּה, בַּכָּסֶף; לֹא-תִתְעַמֵּר בָּהּ, תַּחַת אֲשֶׁר עִנִּיתָהּ

“And it shall be, if thou have no delight in her, then thou shalt let her go whither she will; but thou shalt not sell her at all for money, thou shalt not deal with her as a slave, because thou hast humbled her.”

She goes free. She cannot be sold as a servant. Beforehand, while she was a captive, she could have been sold, and have been dealt with as a slave. I am not sure if “humbled” is the right word. The root ayin nun heh means several different things in different places, which I will not go into here. But, see by an amah ivriya, Shmot 21:10 where the word seems to occur, and earlier in that same perek, Shmot 21:8, where the root BGD seems to correspond. But perhaps it is. (more on this later…)

This by the way is against what I’m pretty certain is the standard way of reading the last pasuk, that if he decides after her shaving her hair/growing her nails/taking off her attractive captive clothing/mourning a month that he no longer finds her attractive (for that was the point - to stifle his desire) and then decides not to go through with the marriage, then she goes free.

I am claiming here that this is after the marriage to say that she is a full wife - not a concubine or slave-wife.

For comparison, let us examine the rules of amah ivriya, the Hebrew maidservant.

In parshat Mishpatim, Shmot 21:7-11:

וְכִי-יִמְכֹּר אִישׁ אֶת-בִּתּוֹ, לְאָמָה—לֹא תֵצֵא, כְּצֵאת הָעֲבָדִים. אִם-רָעָה בְּעֵינֵי אֲדֹנֶיהָ, אֲשֶׁר-לא (לוֹ) יְעָדָהּ—וְהֶפְדָּהּ: לְעַם נָכְרִי לֹא-יִמְשֹׁל לְמָכְרָהּ, בְּבִגְדוֹ-בָהּ. וְאִם-לִבְנוֹ, יִיעָדֶנָּה—כְּמִשְׁפַּט הַבָּנוֹת, יַעֲשֶׂה-לָּהּ.

אִם-אַחֶרֶת, יִקַּח-לוֹ—שְׁאֵרָהּ כְּסוּתָהּ וְעֹנָתָהּ, לֹא יִגְרָע.

וְאִם-שְׁלָשׁ-אֵלֶּה—לֹא יַעֲשֶׂה, לָהּ: וְיָצְאָה חִנָּם, אֵין כָּסֶף

“And if a man sell his daughter to be a maid-servant, she shall not go out as the men-servants do.

If she please not her master, who hath espoused her to himself, then shall he let her be redeemed; to sell her unto a foreign people he shall have no power, seeing he hath dealt deceitfully with her.

And if he espouse her unto his son, he shall deal with her after the manner of daughters.

If he take him another wife, her food, her raiment, and her conjugal rights, shall he not diminish.

And if he do not these three unto her, then shall she go out for nothing, without money.”

Here, the traditional explanation is that this is a girl under the age of 12 who is sold by her poor father to be a helper/servant in a rich man’s house. The rich man is expected to either marry her himself or marry her to her son. In marriage, she has all the full rights of a wife, and these rights do not diminish even if he takes another wife. If he does not do three things - marriage to himself, or to his son, or allow her to be redeemed (in other words, relatives do not redeem her), after a specific period of time, or when she becomes an adult, she goes free without money.

However, on a level of pshat not rising to the level of practice, we can understand an amah not to be a maidservant, but as a slave-wife, with not all of the protections (but with some) granted to the beautiful captive.

וְכִי-יִמְכֹּר אִישׁ אֶת-בִּתּוֹ, לְאָמָה—לֹא תֵצֵא, כְּצֵאת הָעֲבָדִים.

“And if a man sell his daughter to be a maid-servant, she shall not go out as the men-servants do.”

A man sells his daughter as a slave-wife, an amah ivriya, then since she is married, she does not serve for a six year period like that of the man-servant mentioned earlier in the perek. The marriage is forever, except by divorce.

אִם-רָעָה בְּעֵינֵי אֲדֹנֶיהָ, אֲשֶׁר-לא (לוֹ) יְעָדָהּ—וְהֶפְדָּהּ: לְעַם נָכְרִי לֹא-יִמְשֹׁל לְמָכְרָהּ, בְּבִגְדוֹ-בָהּ.

“If she please not her master, who hath espoused her to himself, then shall he let her be redeemed; to sell her unto a foreign people he shall have no power, seeing he hath dealt deceitfully with her.”

The first case is where the man himself marries her. He bought her for the purpose of marriage, not servitude. If he does not want to remain married to her, וְהֶפְדָּהּ, he can let her relatives redeem her. He cannot sell her to a foreign nation, לְעַם נָכְרִי לֹא-יִמְשֹׁל לְמָכְרָהּ, that is, to some stranger other than her own family. He cannot treat her as a slave, לֹא-יִמְשֹׁל , in that he can sell her, once he has married her and now spurns her, בְּבִגְדוֹ-בָהּ. This would correspond to the female captive:

וְהָיָה אִם-לֹא חָפַצְתָּ בָּהּ, וְשִׁלַּחְתָּהּ לְנַפְשָׁהּ, וּמָכֹר לֹא-תִמְכְּרֶנָּה, בַּכָּסֶף; לֹא-תִתְעַמֵּר בָּהּ, תַּחַת אֲשֶׁר עִנִּיתָהּ

“And it shall be, if thou have no delight in her, then thou shalt let her go whither she will; but thou shalt not sell her at all for money, thou shalt not deal with her as a slave, because thou hast humbled her.”

In both cases, I claim it is after marriage, and now that he spurns her and rejects her, he cannot sell her. In the case of the female captive, she simply goes free. In the case of the amah ivriya, her family redeems her.

אִם-רָעָה בְּעֵינֵי אֲדֹנֶיהָ, אֲשֶׁר-לא (לוֹ) יְעָדָהּ—וְהֶפְדָּהּ: לְעַם נָכְרִי לֹא-יִמְשֹׁל לְמָכְרָהּ, בְּבִגְדוֹ-בָהּ.

Alternatively, he can purchase her as a slave-wife for his son. She is then entitled to be treated “kimishpat habanot,” that is that he has certain obligations towards a daughter-in-law and has to treat her in a certain way.

One might say those obligations are:

אִם-אַחֶרֶת, יִקַּח-לוֹ—שְׁאֵרָהּ כְּסוּתָהּ וְעֹנָתָהּ, לֹא יִגְרָע.

Onata is not necessarily conjugal rights. There is a major dispute whether this actually refers to an allotment of a type of food. If so, even if he purchases another daughter for his son, the father needs to still give her mishpat habanot.

Otherwise, this refers to a man’s own obligation to his amah-ivriyah wife, even if he takes for himself another wife.

וְאִם-שְׁלָשׁ-אֵלֶּה—לֹא יַעֲשֶׂה, לָהּ: וְיָצְאָה חִנָּם, אֵין כָּסֶף.

“And if he do not these three unto her, then shall she go out for nothing, without money.”

If he fails to provide these three things due a wife, she is no longer bound in slave-marriage. She need not be redeemed by her family for money, but goes free without any payment, and can marry whomever she chooses.

Here, you can no longer say the three are marriage to himself, marriage to his son, redemption, since the (unsupported) assumption is that he originally purchases the amah ivriya for marriage and thus after purchase she is married, not a maid-servant waiting to be married or redeemed.

Returning to the subject of the female captive, we now can say that just as the amah ivriyah is dealt treacherously with when her husband want to get rid of her, and then cannot be sold, so too a female captive after marriage, not that her husband wishes to get rid of her and deal treacherously with her, cannot be sold.

(Alternatively, you can say that just as the amah ivriya cannot be sold, and we are assuming this is before marriage while still a maidservant in the owner’s house, similarly the female captive cannot be sold, also while waiting for marriage in the captor’s house, having shaved her hair/grown her nails etc..)