Avodah Mailing List

Volume 42: Number 13

Wed, 21 Feb 2024

• 1. V'katsosah ess kapah" (Zvi Lampel)
• 2. "An eye for and eye," etc. (Zvi Lampel)
• 3. "V'katsosah ess kapah" (Zvi Lampel)
• 4. Re: "An eye for and eye," etc. (Zvi Lampel)
• 5. Re: "An eye for and eye," etc. (Micha Berger)
• 6. academics? (Joel Rich)
• 7. Re: "An eye for and eye," etc. (Zvi Lampel)
• 8. klalei psak (Joel Rich)
• 9. Re: academics? (Micha Berger)

("And her palm is trimmed" is probably an unprecedented translation of
"V'katsosah ess kapah" (Devarim 25:12).  But the usual translations, such
as "and you shall cut off her hand" do not address the fact that a "kaf" is
usually a palm, and "you shall" is almost always written without the letter
"hey" [see HaEmek Davar loc.cit.]. But this is besides the point I want to
make.)

The one to whom the posuk assigns this consequence is a woman who, to save
her husband from the blows of another man, grabs that man's genitals (an
unnecessarily humiliating and life-threatening move).

The Mishnah (BK 8:1) and Gemara thereon (BK 28a) teach us that this is a
reference to /boshess/--monetary compensation for causing the man's
humiliation. Rambam, Hilchos Chovail Umazik 1:9, states this as the
understanding of the posuk as well. In the introduction to his Mishnah
commentary, he states that this, along with "ayin tachas ayin" etc., is a
payrush mekubal miSinai. And he uses this as an example when illustrating a
false prophet who gives an understanding of a posuk to be different from
the oral law's:
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Avodah readers are of course aware that the Talmud (Bava Kamma 8:1, 28a, )
states that the actual consequence for physically damaging someone is a
monetary fine, and the Rambam writes that historically Bes Din never ruled
otherwise.

Rav Yitzchak Isaac Halevy in Doros HaRishonim (II:16, p. 426ff.) strongly
maintains that it is not that the translation of the phrase is monetary
compensation. The phrase actually means that Bes Din should afflict the
same wound upon the perpetrator with which he afflicted the victim.
However, he explains, the Torah considers it understood that monetary
payment is always an alternative, except when it's not, and that is why the
Torah specifies in some cases (e.g. murder) that "kofer" is not an
alternative. He notes that the Targum translates the phrase literally. Rav
Saadia Gaon's Tafsir does so as well.

This is indeed one of the explanations offered in the Gemara. Oddly,
though, Rav Halevy energetically labels the other approach as a mistake. I
say oddly, because the Gemara offers several explanations that to my mind
follow the other approach of reconsidering the meaning of the words as well.

I'm aware that the issue of how to relate the halacha of monetary
compensation to the words of the posuk "ayin tachas ayin" has been
discussed in the past, such as here:

https://www.aishdas.org/avodah/getindex.cgi?section=L#LIMITS%20OF%20PARSHANUT

--but I think this Doros HaRishonim is an interesting new data point.

Zvi Lampel
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("And her palm is trimmed" is probably an unprecedented translation of
"V'katsosah ess kapah" (Devarim 25:12).  But the usual translations, such
as "and you shall cut off her hand" do not address the fact that a "kaf" is
usually a palm, and "you shall" is almost always written without the letter
"hey" [see HaEmek Davar loc.cit.]. But this is besides the point I want to
make.)

The one to whom the posuk assigns this consequence is a woman who, to save
her husband from the blows of another man, grabs that man's genitals (an
unnecessarily humiliating and life-threatening move).

The Mishnah (BK 8:1) and Gemara thereon (BK 28a) teach us that this is a
reference to /boshess/--monetary compensation for causing the man's
humiliation. Rambam, Hilchos Chovail Umazik 1:9, states this as the
understanding of the posuk as well. In the introduction to his Mishnah
commentary, he states that this, along with "ayin tachas ayin" etc., is a
payrush mekubal miSinai. And he uses this to illustrate a false prophet who
gives an understanding of a posuk different from the oral law's explanation,

...even if the literal meaning of the posuk supports him, saying, for
example, that the Torah's statement, "V'kotsatah ess kapah" really means
cutting off her hand, and it is not a fine placed on the humiliator, as it
comes through the kabalah.

Moreover, Rambam states, "We have not found any dissent concerning
Scripture's statement, "V'kotsatah ess kapah" that it is /kofer/.

But this is a problem. In the Sifri (293:12), whereas Rebbi Yehuda learns
through a gezeyra shava that the consequence is /mammon/, the Tanna Kamma
says that the posuk is stating that the halacha is talking about a literal
amputation of her hand. Since she is endangering the life of her husband's
enemy, one is obligated to cut off her hand, if not kill her, since she is
a /rodef/.

So there /is/ an opinion that the phrase is meant literally. How could the
Rambam deny that?

Not only that, but in three places (Sefer HaMitzvos, mitzvas asaei 247, lav
292, Hilchos Rotzeach 1:5-7) the Rambam himself poskens so and, citing the
Sifri, cites our posuk as the basis!

ANSWER:
The Tanna Kamma and Rebbi Yehuda are not arguing halacha, because they are
not referring to the same scenario.* The Tanna Kamma, as explained, is
talking about the halacha for the situation /before/ the woman is brought
to Bes Din, when it is possible to prevent the injury. Rebbi Yehuda is
talking about the halacha the Bes Din must follow /after/ the injury
occurred (and the victim survived). This is not a whimsical application of
okimtos. It is undeniable. Mammon is only relevant after the fact of the
crime, and cutting off the woman's hand to prevent the injury is only
relevant before she is brought to Bes Din.

If there is a machlokes, it would only be over which of both accepted
halachos the posuk is referring to, assuming it can only tolerate one of
them. But we see that the Rambam uses the posuk for both.

When the Rambam says that it is mekubal miSinai that "V'kotsatah ess kapah"
refers to /boshes/, he means as it applies to the consequence issued by
Beis Din after the injury was inflicted.

And when the Rambam says that if a claimant to prophecy "says that the
Torah's statement, 'V'kotsatah ess kapah' really means cutting off her
hand, and it is not a fine placed on the humiliator, as it comes through
the kabalah, the clause "and it is not a fine placed on the humiliator" is
part of what the claimant is explicitly saying, making the context the
consequence Bes Din should apply after the injury was inflicted; and that
is the denial of the payrush miSinai that in that scenario, the consequence
we learn from ''V'kotsatah ess kapah'' is not a cutting off of her hand,
but monetary compensation for busha.

*This is despite the fact that normally "Ploni omare" following a statement
(which is the way Rebbi Yehuda's opinion is presented in this Sifri)
signifies a dissenting opinion.

Zvi Lampel
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On Tue, Feb 20, 2024 at 5:12?PM Micha Berger <mi...@aishdas.org> wrote:

> RMB: On Tue, Feb 20, 2024 at 02:17:46PM -0500, Zvi Lampel via Avodah wrote:
>


> ZL: > Avodah readers are of course aware that the Talmud (Bava Kamma 8:1,
> 28a, )
> > states that the actual consequence for physically damaging someone is a
> > monetary fine...
>
> ....
> > Rav Yitzchak Isaac Halevy in Doros HaRishonim (II:16, p. 426ff.) strongly
> > maintains that it is not that the translation of the phrase is monetary
> > compensation...
>
> RMB: The gemara uses this example to discuss whether a derashah needs to be
> panui mishnei tzedadim / qera yatira, or if only one of the two pesuqim
> has to be available for derashah. So, it's definitely derashah.
>

ZL: The Gemara offers several explanations for why  the application of
"ayin tachas ayin" is not the blinding of the criminal's eye. Most are
drashos, such as the one you reference. But as I mentioned, another is not
drash, but the Torah's way of saying what ought to be done if compensation
is not provided.

>
> RMB: Which explains Unqelus and R Saadia Gaon saying peshat is physical.
>

ZL: But Unqelos sometimes "translates" pesukim the way Chazal darshan. For
example, "Do not cook a kid in its mother's milk," Unqelos "translates as
"Do not cook meat and milk together,"


>
> RMB: But, given how often "tachas" does mean payment, *why* is this
> considered
> derashah, and not simply idiom? That bothers me.
>

 ZL: The idea that "tachas" means payment is indeed another explanation the
Gemara offers. It doesn't say that this is a drash.

>
>
> RMB: Also related, taking some edge off my question... "They say" that
> peshat
> in the pasuq is the Mussar, whereas derashah contains the Halakhah. This
> pasuq being a usual example; peshat in the pasuq is about being as
> careful with someone else's safety as one would with one's own, because
> in a sense a person would deserve the same injury that they caused. That
> is the attitude, values and middos message. And this is true for Tanakh
> as a whole. Neviim don't source halakhah because they are only peshat
> (and remez and sod?) not derashah. Tanakh is a Mussar book. It's just
> that Chumash has a second layer as well.
>

ZL: Rambam and Ibn Ezra say something similar: That the posuk is saying
that the perpetrator really deserves to have the same injury inflicted on
him, although kofer is an alternative. (As I mentioned, the Doros
HaRishonim supports himself with this.
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On Tue, Feb 20, 2024 at 02:17:46PM -0500, Zvi Lampel via Avodah wrote:
> Avodah readers are of course aware that the Talmud (Bava Kamma 8:1, 28a, )
> states that the actual consequence for physically damaging someone is a
> monetary fine...

....
> Rav Yitzchak Isaac Halevy in Doros HaRishonim (II:16, p. 426ff.) strongly
> maintains that it is not that the translation of the phrase is monetary
> compensation...

The gemara uses this example to discuss whether a derashah needs to be
panui mishnei tzedadim / qera yatira, or if only one of the two pesuqim
has to be available for derashah. So, it's definitely derashah.

Which explains Unqelus and R Saadia Gaon saying peshat is physical.

But, given how often "tachas" does mean payment, *why* is this considered
derashah, and not simply idiom? That bothers me.


Also related, taking some edge off my question... "They say" that peshat
in the pasuq is the Mussar, whereas derashah contains the Halakhah. This
pasuq being a usual example; peshat in the pasuq is about being as
careful with someone else's safety as one would with one's own, because
in a sense a person would deserve the same injury that they caused. That
is the attitude, values and middos message. And this is true for Tanakh
as a whole. Neviim don't source halakhah because they are only peshat
(and remez and sod?) not derashah. Tanakh is a Mussar book. It's just
that Chumash has a second layer as well.

-Micha

-- 
Micha Berger                 "'When Adar enters, we increase our joy'
http://www.aishdas.org/asp    'Joy is nothing but Torah.'
Author: Widen Your Tent       'And whoever does more, he is praiseworthy.'"
- https://amzn.to/2JRxnDF                   - Rav Dovid Lifshitz zt"l

From ?Talmud Reclaimed? re academic research (eg Shai Secunda)
These latter two examples, concerning marriage to one's sister's daughter
and afikoman, present convincing and highly interesting insights into the
origin and development of the Rabbinic laws in question.
Nevertheless, the extent of their utility to traditional Talmudic scholars
remains unclear. Given that these laws were included in the Talmud," they
are both invested with Talmudic authority in the form in which they were
understood and legislated at the close of the Talmudic era.
In terms of practical law, therefore, tracing the original meaning of
afikoman bears negligible significance, even it could be shown that Sages
at the conclusion of the Talmudic era had misunderstood the rulings of
their predecessors. Furthermore, while comprehending the words of earlier
Sages certainly holds value in terms of the commandment of Torah study,
freestanding Rabbinic commandments of this nature are not usually the
subject of the sort of analytical debates which are studied for the sake of
gleaning Talmudic wisdom?

Me- Thus it?s hashgacha pratit that a misunderstanding was codified, but
once codified by the Talmud it?s normative law even though as a data point
it may throw off many other interconnected laws (as in tosfot making an
ukimta to explain it) Also does this apply to post Talmudic psak?

Thoughts?

Bsorot tovot

Joel Rich
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>
> I wrote:
>

 The idea that "tachas" means payment is indeed another explanation the
>> Gemara offers. It doesn't say that this is a drash.
>>
>
I retract. The Gemara's language implies, and the comments of Rashi and
Tosefos explicate, that it is, as you said, a gezeyra shava.

RMB: But, given how often "tachas" does mean payment, *why* is this
>> considered
>> derashah, and not simply idiom? That bothers me.
>>
>
Well, my Concordance does list 186 times that the Tanach uses "tachas" in
the sense of "in place of," or "because of the fact that," and includes
"ayin tachas ayin" as an example. So it /can/ mean payment in some
contexts, such as as with the payment for damages to one's ox, where the
posuk states tashlumin explicitly. But one could say that unqualified,
"ayin tachas ayin" means that as punishment, the criminal must literally
give his eye to the victim "in place of" the eye the victim lost, or
"because of the fact that" he blinded the victim.
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I find this  shiur of interest.

Especially interesting to me were the comments concerning a poseik not
following his intuition (vs The Rav in Community Covenant and Commitment -
Chaplain's draft letter) as well as following a yarshan versus a chadshan
(especially since I think most think of R' Weiss as a chadshan)

Bsorot tovot

Joel Rich


https://torahanytime.com/lectures/283345

Rav Asher Weiss-The Rules of Rendering a Halachic Decision
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On Wed, Feb 21, 2024 at 05:54:36AM +0200, Joel Rich via Avodah wrote:
> From "Talmud Reclaimed" re academic research (eg Shai Secunda):
...
>> In terms of practical law, therefore, tracing the original meaning of
>> afikoman bears negligible significance, even it could be shown that Sages
>> at the conclusion of the Talmudic era had misunderstood the rulings of
>> their predecessors. Furthermore, while comprehending the words of earlier
>> Sages certainly holds value in terms of the commandment of Torah study,
>> freestanding Rabbinic commandments of this nature are not usually the
>> subject of the sort of analytical debates which are studied for the sake of
>> gleaning Talmudic wisdom?

> Thus it's hashgacha pratit that a misunderstanding was codified, but
> once codified by the Talmud it's normative law even though as a data point
> it may throw off many other interconnected laws (as in tosfot making an
> ukimta to explain it) Also does this apply to post Talmudic psak?

I like this mashal...

The telephone was invented twice: Once by Elisha Gray, who failed to
register a patent right away. His financier convinced him it was a toy he
stumblded across while researching ways to get more telegraph messages
on a single wire. Gray ended up applying for that patent after a two
plus year wait, and he was originally told he got it -- until another
patent office established that the more famous application by Alexander
Graham Bell was registered a mere 2 hours earlier. (At least, that's
the story. Some historians "debunked" that last bit.)

It was Telephone Time. The idea happened due to the science and
engineering being at the right stage -- the pieces were there for people
to combine. And there were social forces in where the US was at that
time to make such remote communication an attractive idea.

But none of what I wrote will help someone figure out how to fix their
phone. (Even back when phones were the analog devices Bell is credited
with inventing.)

What is relevent to a poseiq is the sevara of afiqoman or marrying bas
achoso. And how broadly was it accepted among rabbanim and in practice.
The history is interesting, but a totally different topic. The mechanics
of how a telephone works has nothing to do with why someone was driven
to identify those mechanics.

Emunas Chakhamim would have me back away from assuming there was
a misunderstanding. I met gedolim who overawed me, and the way they
speak of the Chafeitz Chaim... How could I confidently say I figured out
something in which someone "miles beyond", like a member of Chazal, erred?
But even if there were an error, an error in motive says nothing about the
validity of the results. Halakhah isn't history.

Tir'u baTov!
-Micha

-- 
Micha Berger                 What you get by achieving your goals
http://www.aishdas.org/asp   is not as important as
Author: Widen Your Tent      what you become by achieving your goals.
- https://amzn.to/2JRxnDF            - Henry David Thoreau


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