Bais HaVaad on the Parsha

The Rambam (Hil. Avodah Zarah 11) lists the types of witchcraft and sorcery that are forbidden by the Torah. He writes that all of these are lies and falsehoods; they have no real power and are only tricks and illusions used to fool people.

This statement seems to contradict many Gemaras, as well as numerous pesukim, that speak of witchcraft as a real but impure power. The Rishonim and Acharonim suggest several answers to this problem, each of which is problematic.

I would like to offer another possible answer. In Hilchos Yesodei HaTorah, the Rambam says that a navi (prophet) must prove himself with a sign, like successfully predicting the future, in order to be accepted. But how, the Rambam proceeds to ask, is this a sign of prophecy, perhaps the man is a sorcerer who can see the future through the forces of impurity? He answers that sorcerers are only correct some of the time and are always wrong about some of their predictions, so if one is consistently correct, he must be a true navi. It emerges from this Rambam that practitioners of witchcraft might indeed see the future, but they do so unreliably. Perhaps he refers to witchcraft in Hilchos Avodah Zarah as falsehood because it is always partially wrong, unlike the powers of holiness which are always completely accurate.

A source for the Rambam may be found in our pasuk: The sorcerers were able to perform some of the same wonders as Moshe—turning staffs into snakes, turning blood into water, and making frogs appear—but they could not conjure lice. This may be because the powers of impurity only work sometimes and are unreliable.

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Shall I go and call you a wet nurse from among the Ivri women, that she might nurse the child for you?

Shemos 2:7

Because she brought him to many Egyptian women and he didn’t nurse, because he was destined to speak with the Shechinah.

Rashi ibid.

Why is a child subject to food prohibitions? The Gemara says in Yevamos that forbidden foods are metamtem es haleiv(create a spiritual blockage in the heart). This applies even to children; though not yet subject to the prohibition, they still suffer the effects.

What in a gentile mother’s milk causes timtum haleiv? Some say that the milk is kosher, but because it transmits the nutrients from the nonkosher food the mother ate, it causes spiritual impediment. Others explain that milk transmits to the child the essence of the woman who produced it, so if it comes from an impure source, it will impact the baby negatively.

The Rishonim point out that the food you consume becomes a part of your body. The capacity of your body to be a receptacle for devarim shebikdusha can be damaged with forbidden food more than with any other kind of violation.

It is interesting to note that ma’achalos asuros differs from some other aveiros. In the case of Shabbos, when a pikuach nefesh situation requires that Shabbos be violated, there is no negative impact. By contrast, there are authorities who say that one who eats ma’achalos asuros because he is required to do so for pikuach nefesh still incurs the effects of timtum haleiv.

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“So shall you say to Yosef, ‘Please, forgive now your brothers’ transgression and their sin, for they did evil to you.’”

Bereishis 50:17

Yosef’s brothers ask him in their father’s name to forgive them for selling him, but the Torah never says that Yosef did so. According to Rabbeinu Bachya, he did not, so the asarah harugei malchus (the ten Sages killed by the Romans) were killed in atonement.

How is Rabbeinu Bachya to be understood? According to R’ Chaim Palagi (Chayim B’yad 57), Yosef certainly did forgive them, but not verbally, and mechilah baleiv (mental forgiveness) does not suffice. But according to R’ Aharon Leib Steinman (Ayeles Hashachar), Rabbeinu Bachya only means that if Yosef truly forgave them, he would have done it verbally, so he must have felt he could not entirely forgive them for some reason. But forgiving in one’s mind might be valid even according to Rabbeinu Bachya. Chut Shani (R’ Nissim Karelitz) quotes the Chazon Ish that mechilah baleiv is valid, because the key element of forgiveness is relinquishing one’s grudge against the offender.

In the opposite case, where one forgives verbally but doesn’t really mean it, some poskim, including R’ Yosef Engel and R’ Reuven Grozovsky, say it’s valid, because (Kidushin 49b) devarim shebaleiv einam devarim (mental stipulations aren’t effective). But according to the Chazon Ish, perhaps the key criteron of mechilah is the feeling of forgiveness, and otherwise the mechilah is invalid.

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And it was when we ascended to your servant, my father . . .

Bereishis 44:24

The Pirkei D’Rabbi Eliezer says that Yosef’s life was shortened because he did not protest when Yehuda referred to Yaakov multiple times as avdecha avi (your servant, my father).

The Gemara (Kidushin 31b) and Shulchan Aruch (Y.D. 240) detail numerous aspects of the obligation of mora (awe for parents). For example, one may not contradict his father or mother or even say that the parent’s opinion is correct (“machria”). According to the Shach, one may not even contradict his father in absentia. However, the Taz says one may adduce proofs in support of a parent’s opinion. The Taz also says that in matters of Torah, it is permitted to disagree in a respectful manner. Thus the Tur often cites his father, the Rosh, and then cites others who disagree.

The obligation of mora also includes not calling parents by their first names, even after their deaths. Moreover, one may not even call to someone else with the same name as his parent. According to the Rambam, this is permitted in the parent’s absence if the name is common. The Sdei Chemed notes that this might pose a problem for Sephardim, who often name a son after his father, in which case his siblings couldn’t call him by name in the father’s presence. He concludes that this is permitted because in such cases the father is mocheil (waives) his prerogative.

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I will guarantee him; from my hand you can demand him. If I do not bring him to you and stand him up before you, I will have sinned against you for all days.

Bereishis 43:9

The Gemara enumerates three different kinds of areiv (guarantor). The first is the standard areiv, where if the borrower doesn’t pay, the lender may collect from the areiv. The second is an areiv kablan, where the lender has the choice to collect from either the borrower or the areiv. (The Gemara derives the validity of this type of areiv from our pasuk.) The third is an areiv shluf dutz, where the areiv takes primary responsibility, and the lender turns to the areiv first for payment.

In contrast with most payments in Choshen Mishpat, which are made in exchange for receiving some benefit, an areiv accepts the responsibility of repayment without receiving a thing. The Kehilos Yaakov (Kiddushin 12) lists four explanations of the halachic mechanism by means of which the areiv becomes liable: The Rambam explains it as a kinyan odeisa, where the areiv acknowledges that he is responsible to pay. According to the Ritva, the areiv’s obligation is in exchange for the pleasure he derives from the trust placed in him by the lender. The Rashbam suggests that since the areiv instructs the lender (who is considered his agent) to lend the money to the borrower, the areiv “receives” the money to give to the borrower, and in exchange, he must repay the loan. The Nimukei Yosef says the obligation takes effect with only the verbal commitment of the areiv because that commitment was so strong that it made the lender willing to part with his money.

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The Shulchan Aruch (O.C. 677:1) writes that if a person eats in one house and sleeps in another, he should light Chanukah candles where he sleeps. According to the Rama, he should light in the house in which he eats.

The Mishnah Brurah writes that if one visits a friend for dinner one night but is not sleeping there, he still lights at home, because the Rama is referring to where one has a fixed location for eating and sleeping. In contrast, the Biur Halacha (citing the Pri Chadash) writes that if one goes away for all eight days of Chanukah, he lights where he is staying, even if he occasionally returns home to eat.

Contemporary poskim disagree concerning where to light if one goes away for one day (either a weekday or Shabbos). Rav Elyashiv and lhbcl”c R’ Shmuel Kamenetsky hold that he must light where he is staying for the majority of Chanukah (and send a proxy to light there if he is elsewhere). The Chovas Hadar writes that he may light where he is staying that night, which is the commonly accepted custom. (Rav Elyashiv and lhbcl”c Rav Kamenetsky may agree as well if he is not in the city in which he lives).

Poskim also disagree concerning where to light on motza’ei Shabbos if one was away for Shabbos (and is returning home afterward). According to R’ Shmuel Kamenetsky, he may light before he leaves, since this is an extension of Shabbos. According to R’ Shlomo Zalman Auerbach, he may light there if he stays for at least half an hour after Shabbos, while the Chovas Hadar says he must stay a few hours. R’ Yaakov Forchheimer suggests leaving a large sign on one’s door reminding himself to light, and lighting when he returns home (which also would permit eating beforehand).

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Please save me from my brother, from Eisav . . .

Bereishis 32:12

The Gemara (Brachos 26b) derives from the pasuk of “Vayifga bamakom” in Parshas Vayeitzei (Bereishis 28:11) that Yaakov instituted the daily tefilah of Ma’ariv. In this pasuk in Parshas Vayishlach, Yaakov engages in tefilah b’eis tzarah (prayer in a time of crisis) and asks Hashem to save him. These two forms of tefilah parallel the Rambam’s description of two mitzvos d’Oraisa of tefilah: daily tefilah, which the Rambam derives from the pasuk of “Va’avadetem es Hashem Elokeichem” (Shemos 23:25), and crying out to Hashem in times of distress, which the Rambam lists (Mitzvah 59) together with blowing the trumpets.

The Ramban (Hasagah 5) disagrees with the Rambam and considers daily tefilah a mitzvah d’Rabanan, though he seems to agree that tefilah during times of distress is a d’Oraisa obligation.

The Shulchan Aruch (O.C. 106:2) rules that women are obligated in the mitzvah of tefilah (i.e., Shmoneh Esrei) because it is not a time-bound mitzvah. According to the Magein Avraham, this ruling follows the Rambam that daily tefilah is a mitzvah d’Oraisa but no specific time is Biblically necessary. The Magein Avraham therefore holds that women must only say a short tefilah with a bakashah (request) daily but are exempt from the mitzvah d’Rabanan of a full Shmoneh Esrei.

The Ramban would hold that Chazal instituted tefilah (i.e., Shmoneh Esrei) as time-bound (Shacharis in the morning, Minchah in the afternoon, and Ma’ariv at night), but women are obligated (despite usually being exempt from time-bound mitzvos) because they, too, must daven to Hashem for mercy (see Brachos 20b). The Mishnah Brurah in fact rules, based on the Ramban, that women are obligated to recite the full Shmoneh Esrei of Shacharis and Minchah. Nevertheless, the Chafetz Chaim is reported (by his son in Sichos HeChafetz Chaim, Vol. 1, 27) to have told his wife she was exempt from Shacharis and Minchah while she was busy fulfilling the mitzvah of raising her young children.

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And he encountered (vayifga) the place and stayed there overnight because the sun had set . . .

Bereishis 29:1

According to the Gemara (Brachos 26b), the word vayifga (from the root pegi’ah) refers to tefilah, from which the Gemara derives that Yaakov established the practice of davening Ma’ariv. The Gemara also says (Brachos 27b) that Ma’ariv is optional, though Klal Yisrael accepted it as obligatory.

Tosafos (Brachos 4b) asks that given the inherent reshus status of Ma’ariv, why does the Gemara also say (Brachos 9a) that the bracha of Ga’al Yisrael about the Redemption from Egypt must be adjacent to Shmoneh Esrei? How can this be required if the entire Ma’ariv is optional? Tosafos answers that although Ma’ariv is not an absolute obligation, if one does recite it, smichas ge’ulah lisfilah is required.

This idea may also explain the approach of the Magein Avraham, who holds (106) that women are not obligated to recite Shmoneh Esrei, yet he also holds (70) that women are obligated in smichas ge’ulah lisfilah. The Machatzis Hashekel explains that although women may make a short request to fulfill their daily obligation of tefilah, if they choose to recite Shmoneh Esrei, they must also be someich ge’ulah lisfilah.

May one announce immediately before the Ma’ariv Shmoneh Esrei to insert an addendum (e.g., Ya’aleh v’yavo), or is that considered a hefsek (interruption) between ge’ulah and tefilah? The Rashba, quoted by the Shulchan Aruch, rules that it is not considered a hefsek because it is for the purpose of the Shmoneh Esrei; additionally, Ma’ariv is a reshus, so the requirement for semichas ge’ulah lisfilah is more lenient than for Shacharis. However, the Kaf Hachaim and Shulchan Aruch HaRav (in his Siddur) note that the custom is not to announce this.

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And Yaakov said to Yitzchak: I am Eisav, your firstborn.

Bereishis 27:19

Yaakov Avinu engaged in deception multiple times to obtain what was rightfully his. Is such behavior permitted according to halacha? The Gemara (Berachos 5b) indicates that Rav Huna suffered financial loss because he did not give his sharecropper what he deserved, even though the sharecropper had acted dishonestly with Rav Huna. But the Gemara (Megillah 13b) states that Yaakov told Rachel it was permitted for him to engage in deception against others who attempt to deceive him (e.g., Lavan).

The Mordechai suggests that one may seize a specific object taken from him, but he may not take other objects in response to being cheated (like with Rav Huna). The Ben Ish Chai limits the Mordechai’s license to seizing the item in public. If that is not possible, then surreptitious retrieval is permitted. The Sho’el Umeishiv agrees, though he is unsure whether seizing the amount owed is equivalent to seizing a specific object.

The Rashba, by contrast, argues forcefully that lying is absolutely forbidden even to retrieve one’s property taken by others. Perhaps he would explain Yaakov’s statement in Megillah as referring to a “white lie,” but an absolute lie would be forbidden.

The Mishpatecha L’Yaakov (a contemporary work) rules that an employee who was tricked by his employer (they had agreed on an hourly rate, and the employer later falsely claimed the agreed rate was lower) may inflate his hours to receive the payment he is owed. He claims that the Rashba’s stringent approach applies only in Bais Din, but outside of Bais Din one may lie in such a case.

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And Avraham said to his servant . . . but you shall go to my land and to my birthplace, and you shall take a wife for my son, for Yitzchak.

Bereishis 24:2,4

The Acharonim question how Yitzchak was permitted to have Eliezer serve as a shaliach (proxy) to marry Rivkah on his behalf. After all, the Gemara (Kiddushin 41a) states that it is forbidden to marry a woman without seeing her first to ensure that he is happy with her, and it is generally accepted that the Avos kept the Torah (see, e.g., Mishnah, Kidushin 72b).

The Sefer Chasidim answers that since Yitzchak was not allowed to leave Eretz Yisrael, he couldn’t marry Rivkah himself, so he had to send a proxy.

The Moshav Zekeinim answers that Eliezer did not actually marry Rivkah on behalf of Yitzchak; he simply brought her back to Yitzchak so they could marry in person.

The Tzeidah Laderech answers that the prohibition applies only if no one sees the girl on behalf of the groom. However, if the groom appoints someone to see her for him, that is sufficient.

R’ Asher Weiss answers, based on the Noda Bihuda, that if the groom accepts upon himself that he wishes to marry the girl regardless of how she looks, that would be acceptable.

There were many communities in Europe where couples married without the groom seeing the bride beforehand. Although this seems to violate the Gemara, many poskim defended the practice for various reasons, including some of the reasons we have cited.

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And Hashem appeared to him in Elonei Mamrei, and he was sitting at the entrance of the tent in the heat of the day.

Bereishis 18:1

According to the Midrash, Hashem visited Avraham following his bris milah to perform the mitzvah of bikur cholim. Although the Rambam (Hilchos Avel 14:1) states that bikur cholim is considered a mitzvah derabanan, he writes that it also fulfills the mitzvah d’Oraisa of loving another Jew (v’ahavta l’reiacha kamocha).

The Gemara (Nedarim 39b) explains that bikur cholim consists of two different elements: taking care of the patient’s physical needs, such as cleaning, food, clothes, and medical care, and the spiritual element, which includes sharing in his suffering and davening for him. In fact, the Ramban states that one who visits the sick but does not daven for him does not fulfill the mitzvah properly.

This spiritual component may also explain why the Gemara (ibid.) needs to state that the mitzvah applies even to a prominent person visiting a less prominent one. Although certain other financial mitzvos do not apply when it is beneath one’s dignity (e.g., returning certain lost objects), the Ahavas Chesed (3:3) explains that the Gemara teaches that bikur cholim applies in all cases. This may be due to the spiritual component, which goes beyond a regular mitzvah bein adam l’chaveiro (interpersonal mitzvah).

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And there was a disagreement between the shepherds of Avraham and the shepherds of Lot.

(Bereishis 13:7)

Lot’s shepherds were wicked, and they pastured their animals in fields belonging to others, so Avram’s shepherds rebuked them for committing robbery.”

(Rashi ibid.)

Rashi here implies that Avraham’s shepherds felt the mitzvah of tochachah (giving rebuke to a sinner) applies even to gentile sinners. This conclusion is reflected in a few other sources as well. For example, the P’nei Yehoshua (Shabbos 55) states that Lot left Tzo’ar after fleeing there because he was afraid of being punished for not having rebuked the residents for their sins. In addition, the Perisha (C.M. 249) claims that Avraham did not accept gifts from the king of Sedom (in our parsha) because he would no longer be able to fulfill the mitzvah of tochachah with him if necessary (since Avraham would have to treat him with extra respect). This is difficult to understand, though, because the Torah states that the mitzvah of tochachah applies only to “amisecha (your fellow)” (Vayikra 19:19), meaning another Jew. Rashi (Sanhedrin 75a) also states explicitly that the mitzvah of tochachah does not apply to gentiles.

Perhaps the question can be resolved based on a comment of the Sefer Chasidim (Siman 1124) that it is a mitzvah to give tochachah to non-Jews, as evident from the fact that Hashem commanded Yonah to instruct the city of Nineveh to do teshuvah. Although the Sefer Chasidim does not invoke the actual Torah obligation of hochaiach tochi’ach, he seems to hold that it is important to prevent even goyim from transgressing aveiros whenever possible. Some Acharonim suggest that this directive may be classified as a midas chasidus. Thus, perhaps Avraham’s shepherds were fulfilling this dimension of the mitzvah of tochachah.

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And the earth became corrupt before G-d, and the earth became full of robbery.

Bereishis 6:11

‘Became corrupt’ is an expression of immorality and idolatry.

Rashi ibid.

In light of the violation of the standards of morality by the generation destroyed in the Flood as well as the lack of standards of modesty today, it behooves us to review the differences between a Jewish and non-Jewish marriage. According to the Rambam (Ishus 1:1), b’nei No’ach can meet in the marketplace and, simply through mutual consent, create a marital bond. The Rambam continues that following the giving of the Torah, a Jewish marriage, on the other hand, requires a tangible kinyan on the part of the husband, viewed by two witnesses, symbolizing a more serious commitment on the part of the parties that creates an existential bond between them.

The Ran (Nedarim 29) explains further that the husband alone performs the kinyan because the woman is essentially releasing herself (“mafkeres atzmah”) to allow the man to make a kinyan.

Due to this bond, a halachic mechanism known as geirushin is required to terminate a Jewish marriage. A ben No’ach lacks this bond, and the Yerushalmi in Kidushin accordingly states that there is no notion of geirushin for b’nei No’ach. According to the Rambam, this means that the husband and wife can divorce simply by expressing mutual consent, similar to the mechanism of their marriage. Rabeinu Dovid (quoted by the Ran to Sanhedrin 18b), though, argues that according to the Yerushalmi, there is no method by which the marriage of a ben No’ach can be dissolved.

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And Hashem Elokim formed man out of dirt from the ground, and He breathed into his nostrils the soul of life, and man became a living soul.

Bereishis 2:7

The Gemara (Sanhedrin 38b) states that Hashem created Adam in stages. He first gathered dirt, then He formed it into a golem, then He stretched out its limbs, and finally He blew a neshamah into its nostrils. It seems from here that Adam Harishon was first created as a golem and then transformed into a person (see also the commentary of the Rosh to Bereishis 4:26). In fact, people have also occasionally fashioned golems (see Sanhedrin 65b).

What is the halachic status of a golem? The Chacham Tzvi (93, referenced by Mishnah Berurah 55:4) notes that his grandfather R’ Eliyahu (Av Bais Din of Chelem) made a golem, and expresses uncertainty whether it would count for a minyan, though he concludes that it would not. R’ Yaakov Emden (2:82) argues that a golem clearly cannot count for a minyan, because it cannot have a higher status than a deaf-mute, insane person, or minor, who are human but don’t count for a minyan.

A similar question concerns the status of an animal made with Sefer Yetzirah. According to the Shelah (cited by the Pis’chei Teshuvah, Y.D. 62), it is not an animal, so it does not require shechitah and it may be eaten alive without concern for eiver min hachai (the prohibition of consuming a limb from a live animal). On the other hand, the Chashukei Chemed (Sanhedrin 65) quotes the Chazon Ish (Y.D., Nidah 110:4) that an animal made using the Sefer Yetzirah might still be subject to shechitah, because the rules of the Torah concerning animals apply to any being with animal form.

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