Halakhah su Deuteronomio 25:78

Rav Moshe Feinstein (Teshuvot Igrot Moshe C.M. 2:66) was asked whether it is permissible for a young woman to undergo cosmetic surgery to improve her chances of finding a suitable marriage partner. Rav Moshe approved the surgery based on the Rambam’s (Hilchot Chovel Umazik 5:1) definition of the prohibition of chavalah (wounding). In general, the Torah prohibits both wounding another person (see Devarim 25:3) and, as the Gemara (Bava Kama 91b) adds, even wounding oneself. The Rambam specifies that wounding is forbidden when it is performed “in a degrading manner,” (derech bizayon) or, according to an alternative text, “in a belligerent manner” (derech nitzayon). Thus, although the Rambam rules in accordance with the Tannaitic view (ibid.) that an individual is forbidden to wound himself, Rav Moshe infers from the Rambam’s proviso that if the wounding (whether of others or of oneself) is done in a beneficial manner, the prohibition of chavalah does not apply.¹For further discussion and a summary of the authorities who either agree or disagree with Rav Moshe interpretation of the Rambam, see Rav Daniel Feldman, The Right and the Good pp. 159-161.

In general, anyone designated by the Halachah as a rasha (sinner) cannot serve as a witness (Shemot 23:1). Thus, anyone who commits a sin punishable by malkot (lashes) cannot serve as a witness (as the Torah refers to one who is punished by malkot as a rasha, in Devarim 25:2). Similarly, deliberately violating a Torah law that is punishable by kareit or death disqualifies one as a witness. In addition, one who engages in theft or other monetary offenses and one who does not believe in the thirteen basic beliefs of Judaism cannot serve as witnesses. Nonetheless, the Gemara (Sanhedrin 26b) recounts:

Rav Yosef Eliyahu Henkin (Teshuvot Ivra 80) and Rav Shlomo Yosef Zevin (L’or Hahalachah p. 67) note that the preferred method to avoid wartime agunot is for a married soldier to divorce his wife with a conventional get before he leaves for war. The advantage of solving the problem in this manner is that it is a straightforward halachic procedure.³Halachically valid conditions are complex and must meet specific criteria in order to be valid. See Shulchan Aruch (E.H. 143-148) for the many detailed regulations that apply to conditional gittin. Indeed, Rabbeinu Yechiel of Paris (cited in the Mordechai, Gittin 423) instituted the practice that if a get is administered when a childless husband is deathly ill in order for the wife to avoid chalitzah,⁴Chalitzah is the ceremony (outlined in Devarim 25:7-10) in which the brother of a man who died childless officially declines to marry the deceased’s widow, thereby permitting her to remarry. the get should not be given on condition that the husband dies (so that the couple will remain married if he recovers). Instead, the couple should conduct a standard get and solemnly promise⁵This involves both parties accepting, on pain of excommunication, the obligation to remarry if the husband recovers. In addition, a significant financial penalty would be imposed upon a recalcitrant party. to remarry should the husband recover.⁶I recall a case in the 1990s in which a husband was undergoing very risky surgery and wished to give his wife a get so that she would not remain an agunah if the surgery rendered him incapacitated and incompetent. Rav Peretz Steinberg, a noted dayan from Queens, New York, conducted a conventional get. Similarly, Rav Yonah Reiss reports that when the Beth Din of America deals with husbands suffering from an early stage of Alzheimer’s disease, a conventional get is conducted. Indeed, the Maharsha (in his concluding comment to Masechet Gittin) cites the aforementioned view of Rabbeinu Tam that wartime gittin were conducted unconditionally as proof that all gittin should be executed in this way.

These sources, however, serve only to demonstrate that animal-directed conduct which is compassionate in nature constitutes a "good deed" but do not serve to establish a system of normative duties or responsibilities. Particularly in light of the strong nomistic element present in Judaism, the absence of normative regulations might well be regarded as indicative of the absence of serious ethical concern for the welfare of members of the animal kingdom. But this is demonstrably not the case, for, in Jewish teaching, there is no dearth of nomoi designed to protect and promote animal welfare. The most obvious example of a regulation having such an effect, and one which is clearly biblical in origin, is contained in the verse "If thou seest the ass of him that hateth thee lying under its burden, thou shalt forebear to pass by him; thou shalt surely release it with him" (Exodus 23:5). The selfsame concern is manifest in the prohibition against muzzling an ox while it threshes in order that the animal be free to eat of the produce while working (Deuteronomy 25:4). Similarly, Scripture provides that both domestic animals and wild beasts must be permitted to share in produce of the land which grows without cultivation during the sabbatical year.⁴See Me’iri, Baba Meẓi‘a 33a, and Sefer ha-Ḥinnukh, no. 596. The purpose of other biblical laws pertaining to animals in less clear-cut. The prohibition against plowing with animals of different species, recorded in Deuteronomy 22:10, is understood by Sefer ha-Ḥinnukh, no. 550, as well as by Da‘at Zekenim mi-Ba’alei ha-Tosafot and Ba’al ha-Turim in their respective commentaries on Deuteronomy 22:10, as rooted in considerations of prevention of cruelty to animals, but is understood in an entirely different manner by Rambam, Guide of the Perplexed, Book III, chapter 49, as well as by Ramban in his commentary on Deuteronomy 22:10. However, Rambam, Guide, Book III, chapter 48, regards the prohibition against slaughtering an animal and its young on the same day, recorded in Leviticus 22:28, as a precautionary measure designed to prevent the slaughter of the offspring in the presence of its parent. The underlying concern is to spare the mother the anguish of seeing her young killed before her eyes “for in these cases animals feel very great pain, there being no difference regarding this pain between man and the other animals. For the love and the tenderness of a mother for her child is not consequent upon reason, but upon the activity of the imaginative faculty, which is found in most animals just as it is found in man.” Here, Rambam speaks of concern for the welfare of the animal rather than for the moral character of the human agent; see below, notes 14-15 and accompanying text. This interpretation is reflected in the comments of R. Baḥya ben Asher, Leviticus 22:28, and, in part, in Sefer ha-Ḥinnukh, no. 294. Sefer ha-Ḥinnukh regards the commandment prohibiting the slaughter of an animal and its young on the same day as designed both to spare the parent from anguish and as a conservation measure as well. See also Abarbanel’s Commentary on the Bible, ad locum. Rambam’s analysis of the rationale underlying this precept is rejected by Ramban in his Commentary on the Bible, Deuteronomy 22:6. According to Ramban, the concern is not to avoid pain to the animal but to purge man of callousness, cruelty and savagery.
Although the Gemara, Baba Meẓi‘a 32a, declares that assistance in unloading a burden from an animal is mandated by reason of ẓa’ar ba’alei ḥayyim but that the obligation to assist in loading the burden upon the animal is not independently mandated by reason of ẓa‘ar ba’alei ḥayyim, Ritva, cited by Shitah Mekubeẓet, Baba Meẓi‘a 31a, s.v. aval te’inah, asserts that the commandment requiring a person to render assistance to another who is engaged in loading an animal is predicated upon considerations of ẓa‘ar ba’alei ḥayyim. According to Ritva, a single person engaged in this task is likely to cause additional discomfort to the animal by applying the full force of his body weight whereas, when he is assisted by another, there is no need to apply similar pressure.
Sefer ha-Ḥinnukh, no. 186, is of the opinion that the prohibition against the slaughter of sanctified animals outside the Temple precincts is rooted in considerations of ẓa‘ar ba’alei ḥayyim. According to Sefer ha-Ḥinnukh, such slaughter is forbidden because no purpose is served thereby and hence constitutes ẓa‘ar ba’alei ḥayyim. See below, note 29.
Neither the prohibition against mating animals of different species, Leviticus 19:19, nor the prohibition against emasculation of animals, Leviticus 22:24, is understood by classical rabbinic scholars as rooted in considerations of animal welfare. For a discussion of animal welfare as a possible rationale associated with other commandments, see R. Joel Schwartz, Ve-Raḥamav al Kol Ma’asav (Jerusalem, 5744), pp. 11-16. Although the literal meaning of the biblical text may be somewhat obscure, talmudic exegesis understands Genesis 9:4 and Deuteronomy 12:23 as forbidding the eating of a limb severed from a living animal. Jewish law teaches that this prohibition, unlike most other commandments, is universally binding upon all peoples as one of the Seven Commandments of the Sons of Noah. Sabbath laws contained in both formulations of the Decalogue reflect a concern which goes beyond the mere elimination of pain and discomfort and serve to promote the welfare of animals in a positive manner by providing for their rest on the Sabbath day: "But the seventh day is a Sabbath unto the Lord thy God, on it thou shalt not do any manner of work … nor thine ox, nor thine ass, nor any of thy cattle …" (Deuteronomy 5:14). Even more explicit in expressing concern for the welfare of animals is the verse "… but on the seventh day thou shalt rest; that thine ox and thine ass may have rest" (Exodus 23:12).⁵The requirement that the parent bird be released before the young are taken and the concomitant prohibition against taking both the parent and the young, recorded in Deuteronomy 22:6-7, quite obviously have the effect of sparing the parent from anguish. The Mishnah, Berakhot 33b, however, does not view this desideratum, laudable as it may be, as the underlying purpose of the commandment. Cf., however, Rambam, Guide, Book III, chapter 48; Ramban, Commentary on the Bible, Deuteronomy 22:6; and Sefer ha-Ḥinnukh, no. 545.

The second type is when one negative commandment comes to forbid several matters that are connected to one another - and that is that He says, "Do not do such and such." And this type is divided into two divisions. For included in it is that about which they said in the Talmud, that he is liable for lashes on each and every one of the connected matters. But [also] included in it is that about which they said that he is only liable once, since it is a general negative commandment. And those negative commandments about which they explained that one is liable for each and every one of them - they are the ones that we count each and every one as a separate commandment; whereas that about which they explained that one is only liable once for all of them is counted as a single commandment. This is according to that which we established in this principle - that under no circumstances is one given two [sets of] lashes for one negative commandment . So when, in the explanation, they made one liable for each and every connected matter - to give lashes for each and every one of them when they were all done at once, to give several [sets of] lashes - we perforce know that they are several categories; and that each one should be counted separately. And I will mention several examples from both divisions until the intended matter becomes totally clear. And that is His, may He be blessed, saying, about the lamb of the Pesach sacrifice, "Do not eat any of it raw or boiled in any way with water" (Exodus 12:9) - a negative commandment, which we count as one commandment. And we don't count, do not eat it raw, as one commandment; and do not eat it boiled, as another commandment. For He did not specify a separate negative commandment for each matter, to say "Do not eat any of it raw; and not boiled in any way" - but rather one negative commandment came to include both matters; and the one matter was appended to the other. And in the second chapter of Pesachim (Pesachim 41b), they said, "Abbaye said, 'If he ate it raw, he is given two [sets of] lashes; raw and boiled, he is given three." And that is because he holds that we give [distinct sets of] lashes for general negative commandments. So when he ate it raw, he transgressed two negative commandments: One of them is, "Do not eat any of it raw"; and the second [set of] lashes is from the general principle - as He is saying, do not eat it when it is not roasted, and he has already eaten it when it is not roasted. And according to his opinion, when he eats it raw and boiled, he gets three [sets of lashes] - one because he ate it raw; the second because he ate it boiled; and the third because he ate it when it was not roasted. And over there, they said about this statement, "But Rava said, 'One does not receive lashes for a general negative commandment.' Some say, at any rate, one [set of] lashes he does receive. And some say he does not receive even one [set of] lashes, as the negative commandment he transgressed is not specific to it, as is the negative commandment against muzzling." That means to say, like that which He, may be exalted, said (Deuteronomy 25:4), "You shall not muzzle an ox while it is threshing" - which is one negative commandment that prohibits one matter. However for this negative commandment, which prohibits two things - raw and boiled - we do not give lashes. And you already know that it was clarified in the Gemara (Sanhedrin 63a), that we do not give lashes for a general negative commandment. And hence the statement of Abbaye is rejected; and the truth is that he is given one [set of] lashes: Whether he ate any of it raw and boiled, [just] raw or [just] boiled, he is only given one [set of] lashes. And so we shall count His, may He be exalted, saying, "Do not eat any of it raw or boiled," as one commandment. And there, it is also stated, "Abbaye said, '[If a nazirite] ate a grape skin, he receives two [sets of lashes]; a grape pit, he receives two; a grape skin and a grape pit, he receives three. But Rava said, 'One does not receive lashes for a general negative commandment'" - meaning to say, "from anything that is obtained from the grapevine" (Numbers 6:4), for which Abbaye thinks we give lashes. And they also said in the fifth chapter of Menachot (Menachot 58b), "One who offers leaven and honey on the altar - Abbaye says, 'He receives lashes on account of leaven; he receives lashes on account of honey; he receives lashes on account of a mixture of leaven; and he receives lashes on account of a mixture of honey'" - meaning to say that His saying (Leviticus 2:11), "any," is including two things: That he not offer it by itself; and that he not offer a mixture of it, whatever the quantity [of what is mixed with it] may be. And this is all according to the principle of his approach - as he holds that we give [distinct sets of] lashes for general negative commandments. And it is stated there, "But Rava said, 'One does not receive lashes for a general negative commandment.' Some say, at any rate, one [set of] lashes he does receive. And some say he does not receive even one set of lashes, as the negative commandment he transgressed is not specific to it, as is the negative commandment against muzzling."

And it is clear that the priest taking that which he may take is one of the parts of the commandment, as we mentioned with the hide of the burnt-offering. Likewise the first shearings - the whole commandment, is that we separate it and [then] give it to the priest - and likewise the tithe that we give to the Levite. But they have already erred about this, such that they have counted the gifts to the priesthood as a commandment after they have counted some of the commandments that those gifts were a part of - as we explained with the hide of the burnt-offering, and the breast and the thigh of the peace-offerings. And because this principle was hidden from others besides us and they were not aware of it all and they did not comprehend it - they came to counting pouring, mixing, crumbling, salting, presenting, waving and incinerating as separate commandments; and they did not know that they were all parts of the process of the grain-offering. And that is that we were commanded the grain-offering; and afterwards He explained about this topic that was mentioned and what it is about - and that is the precept of the grain-offering. And He said that it should be from fine flour and from bread that is made according to this description or that description - meaning [in] a pan, or a deep-pan or baked in an oven - that it be mixed in oil according to a certain measure, crumbled, that salt and frankincense is put upon it, that it is presented, waved, some of it is taken and incinerated, according to the facets that were explained in Tractate Menachot. But these are all parts of the process. And the matter that follows this whole description is called a grain-offering. If so, the commandment is the command that the process of the sacrifice of bread or of fine flour be that we offer it completely according to this arrangement. And similar to these things in the commandment of the grain offering - meaning its pouring, its mixing, its crumbling, its salting, its presenting, its waving and its incinerating - is His, may He be exalted, saying about chalitsah, "and she shall remove his shoe, spit in front of him, and declare and say" (Deuteronomy 25:9). And just like the commandment of chalitsah is one and we do not count chalitsah (removing the shoe) and spitting [separately] - since it is their combination, which is the process of chalitsah, that is one commandment - so too, would we not count [separately], "and you shall pour oil upon it," "and he shall place frankincense upon it," "you shall surely salt it," "and he shall wave" and "and he shall incinerate." And this would only be hidden from someone who bases his words on his first impressions without [further] analyzing them - as the Sages, may their memory be blessed, say, "He said it on the run" - meaning it was said without observation, but rather what first came to his mind. And this principle [relates to] the commands of the sacrifices and how it is appropriate to count them, such that no new mistakes or confusion creep in at all - as we have explained.

12) On the day of the halitza the five judges should come to the place they set, and the three primary judges sit on one bench REMA: the senior one sits in the middle. And the two additional (judges) sit in front of them on another bench, REMA: there are those that say they sit on the side, and so is the custom. And the brother in law and the widow stand in the middle. REMA: the brother in law and the widow should go to the judges, and not the judges to them, as it says "his brother's wife shall go up to the gate to the elders" Deuteronomy 25:7. Nonetheless, if the judges went to them, the halitza is not negated.

The source of the obligation concerning za'ar ba'alei ḥayyim which imposes a general concern for the welfare of animals is far from clear. Indeed, the Gemara, Baba Mezi'a 32b, cites a dispute with regard to whether the obligation with regard to za'ar ba'alei ḥayyim is biblical or rabbinic in nature.¹⁰Whether ẓa‘ar ba‘alei ḥayyim is prohibited by virtue of biblical or of rabbinic law is of no significance whatsoever insofar as the normative regulations prohibiting overt acts of cruelty vis-à-vis animals are concerned. There are, however, a number of distinctions, albeit most of which are currently of relatively minor impact, with regard to the duty to intervene in order to relieve or prevent animal suffering. The most obvious distinctions are those posited by the Gemara, Baba Meẓi‘a 33a: “[If thou seest the ass of him that hateth thee lying under its burden] ‘lying’ [just now], but not an animal which habitually lies down [under its burden]; ‘lying,’ but not standing.” The Gemara then queries, “If you say that [relieving the suffering of an animal] is biblically [enjoined] what does it matter whether it was lying [this once only], habitually lay down or was standing?” and concludes that such distinctions are cogent only if ẓa‘ar ba‘alei ḥayyim is the subject of rabbinic enactment,but that such exclusions from the duty to relieve animals from pain cannot be entertained if ẓa‘ar ba‘alei ḥayyim is a matter of biblical law. Indeed, it is Rambam’s failure to make such distinctions which, in part, prompts Kesef Mishneh, Hilkhot Roẓeah 13:9, to conclude that Rambam maintains that ẓa‘ar ba‘alei ḥayyim is biblically enjoined. On the basis of the discussion recorded in Baba Meẓi‘a 33a, Minḥat Ḥinnukh, no. 80, concludes that intervention to rescue an animal from pain is mandated only if ẓa‘ar ba’alei ḥayyim is mandated by biblical law, whereas, if ẓa‘ar ba’alei ḥayyim is the subject of rabbinic decree, such legislation only prohibits acts of cruelty but does not command intervention. See below, note 11. See also Mahari Perla, Commentary on Sefer ha-Miẓvot of R. Sa’adia Ga’on, aseh 24, s.v. ve-adayin ẓarikh. [Cf., however, R. Moses Sofer, Teshuvot Ḥatam Sofer, Yoreh De‘ah, no. 314, s.v. ve-la‘asot, and no. 318, s.v. ve-hinneh, who apparently maintains that the obligation to rescue an animal from pain is limited to one’s own animals. See also Teshuvot Ḥatam Sofer, Ḥoshen Mishpat, no. 185, s.v. ma she-katavta me-Rabad. Thus, Ḥatam Sofer maintains that, although an overt act of cruelty toward any animal is forbidden, one may allow an ownerless animal to starve. See, however, R. Ezekiel Landau, Teshuvot Noda bi-Yehudah, Mahadura Kamma, Yoreh De‘ah, nos. 81-83, who fails to draw a distinction of this nature. See also Kiẓur Shulḥan Arukh 191:1 and sources cited by R. Eliyahu Klatzkin, Teshuvot Imrei Shefer, no. 34, sec. 1.] Another distinction is found in the application of certain Sabbath restrictions. If it is accepted that obligations with regard to ẓa‘ar ba‘alei ḥayyim are biblical in origin, a non-Jew may be requested to perform acts of labor on the Sabbath, e.g., milking a cow, in order to relieve the animal’s discomfort and certain specific rabbinically proscribed acts may also be performed even by a Jew in order to alleviate the animal’s pain; but no suspension of Sabbath restrictions is countenanced if duties with regard to ẓa‘ar ba‘alei ḥayyim are the product of rabbinic enactment. See Ritva, Baba Meẓi‘a 32b, as well as Rosh, Baba Meẓi‘a 2:29 and Shabbat 18:3; see also Magen Avraham, Oraẓ Ḥayyim 305:11, and Korban Netanel, Shabbat 18:3, sec. 50. [Cf., however, Teshuvot Rav Pe’alim, 1, Yoreh De‘ah, no. 1, who maintains that such actions are permitted only when the life of the animal is endangered. Failure to milk a cow, he asserts, endangers the animal.] There is some controversy with regard to whether a non-Jew may be directed to perform a rabbinically proscribed act; see Encyclopedia Talmudit, II, 45. According to the authorities who adopt a permissive position with regard to this question, such a procedure would be permissible with regard to ẓa‘ar ba‘alei ḥayyim as well, were it accepted that regulations concerning ẓa‘ar ba‘alei ḥayyim are rabbinic in nature. [The citation of Pilpula Ḥarifta, Baba Meẓi‘a 2:29, in this context by R. Ze’ev Metzger in his useful survey, “Nisuyim Refu’iyim be-Ba‘alei Hayyim,” Ha-Refu’ah le-Or ha-Halakhah, vol. II (Jerusalem, 5743), part 3, p. 11, appears to be inaccurate.] See also below, note 52. As has been indicated, if biblical in nature,¹¹It is the virtually unaminous opinion of rabbinic decisors that obligations with regard to ẓa‘ar ba‘alei ḥayyim are biblical in nature. See Rif, Shabbat 128b; Sefer ha-Ḥinnukh, no. 450 and no. 451; Rosh, Baba Meẓi‘a 2:29 and Shabbat 3:18; Nimmukei Yosef, Baba Meẓi‘a 32b; Me’iri, Baba Meẓi‘a 32b; Shitah Mekubeẓet, Baba Meẓi‘a 33a; Sefer Yere’im, no. 267; Sefer Ḥasidim (ed. Reuben Margulies), no. 666; Rema, Ḥoshen Mishpat 272:9; Levush, Oraḥ Ḥayyim 305:18; and Magen Avraham, Oraḥ Ḥayyim 305:11.
Rambam, both in his Commentary on the Mishnah, Beiẓah 3:4, and in the Guide, Book III, chapter 17, affirms that the prohibition against ẓa‘ar ba‘alei ḥayyim is biblical in origin. There is some dispute regarding the proper understanding of the position adopted by Rambam in his Mishneh Torah. Although in Hilkhot Shabbat 25:26 Rambam appears to adopt the identical position, the language employed in Hilkhot Roẓeaḥ 13:9 is somewhat ambiguous. Nevertheless, Kesef Mishneh, ad locum, understands even the latter source as consistent with the view that the prohibition against ẓa‘ar ba‘alei ḥayyim is biblical in nature. However, Pnei Yehoshu’a, Baba Meẓi‘a 32b, and R. Elijah of Vilna, both in his Hagahot ha-Gra al ha-Rosh, Baba Meẓi‘a chapter 2, sec. 29;1, and in his Bi‘ur ha-Gra, Ḥoshen Mishpat 272:11, understand Rambam’s ruling in Hilkhot Roẓeah as reflecting the view that these strictures are rabbinic in nature. See also Minḥat Ḥinnukh, no. 80.
Pri Megadim, Oraḥ Ḥayyim, Eshel Avraham 308:68, and R. Meir Simchah ha-Kohen of Dvinsk, Or Sameaḥ, Hilkhot Shabbat 25:26, both resolve any apparent contradiction in Rambam’s rulings by asserting that in Hilkhot Shabbat Rambam’s intention is only to affirm the biblical nature of the obligation concerning the requirement that animals be permitted to rest on the Sabbath and that it is that biblical law which prompted suspension of certain rabbinic restrictions regarding Sabbath regulations in order to prevent suffering by animals on the Sabbath. In comments which are at variance with his own heretofore cited thesis, Or Sameaḥ, Hilkhot Roẓeaḥ 13:9, offers a novel analysis of Rambam’s position. Or Sameaḥ here asserts that Rambam affirms the biblical nature of strictures against ẓa‘ar ba’alei ḥayyim, but that Rambam distinguishes between practicing cruelty toward animals, which is forbidden, and intervention in an overt manner to spare the animal from discomfort. According to these comments of Or Sameaḥ, Rambam maintains that such intervention is not mandated. Rambam reasons, avers Or Sameaḥ, that there is no prohibition against causing discomfort to an animal in order to satisfy a human need; similarly, argues Or Sameaḥ, there is no requirement that a person discomfit himself in order to promote the welfare of an animal. See also R. Jacob Kamenetsky, Iyyunim be-Mikra (New York, 5744), Numbers 22:32.
Mordekhai, Baba Meẓi‘a 2:263, rules that ẓa‘ar ba‘alei ḥayyim is biblically enjoined, but, in his work on Avodah Zarah 1:799, the same authority rules that such strictures are rabbinic in nature. Ḥiddushei Anshei Shem, Baba Meẓi‘a, sec. 20, endeavors to resolve the contradiction by asserting that, according to Mordekhai, “grave pain” (ẓa‘ar gadol) involves a biblical prohibition whereas “minor pain” (ẓa‘ar mu’at) involves only a rabbinic injunction. It is noteworthy that, according to the Ḥiddushei Anshei Shem, causing an animal to die of starvation involves only “minor pain,” whereas killing an animal in an overt manner is categorized as entailing “grave pain.” [See, however, R. Jacob Ettlinger, Teshuvot Binyan Ẓion, no. 108, who states that “perhaps” causing an animal to die of starvation entails “grave pain.”] Nimukei Yosef, Baba Meẓi‘a 32b, quite independently draws a similar distinction between “grave pain” and “minor pain” without in any way referring to Rambam’s statements. According to Nimukei Yosef, “minor pain” is the subject of rabbinic injunction while “grave pain” is biblically proscribed. See also Ritva, Avodah Zarah 11a.
As will be shown later, a latter-day authority, R. Jacob Ettlinger, Teshuvot Binyan Ẓion, no. 108, permits causing an animal “grave pain” only for purposes of human medical needs but permits “minor pain” even for lesser reasons, at least insofar as normative law is concerned. according to most authorities, this duty is not directly derived from the obligation of "unloading." One notable exception is Rashi, Shabbat 128b. Rashi states that, according to those Sages of the Talmud who maintain that binding regulations may be inferred from the rationale underlying precepts, obligations concerning za'ar ba'alei ḥayyim are directly derived from the verse "thou shalt surely release it with him" (Exodus 23:5).¹²See also Rabad, quoted in Shitah Mekubeẓet, Baba Meẓi‘a 32b, s.v. teda, and Levush, Oraḥ Ḥayyim 305:18. If obligations concerning ẓa‘ar ba‘alei ḥayyim are derived from the commandment concerning “unloading” it would certainly seem to follow that this obligation is not limited to a prohibition against cruelty but includes a positive obligation to intervene in order to rescue from pain. See R. Joel Schwartz, Ve-Raḥamav al Kol Ma’asav, p. 43, note 3, and cf., above, note 10. Rambam, Guide of the Perplexed, Book III, chapter 17, and R. Judah he-Hasid, Sefer Hasidim (ed. Reuben Margulies), no. 666, regard the biblical narrative concerning Balaam and his ass as the source of the biblical prohibition against cruelty toward animals. These authorities indicate that the verse "And the angel of the Lord said unto him: 'Wherefore hast thou smitten thine ass these three times?' " (Numbers 22:32) serves to establish a prohibition against conduct of that nature.¹³See below, note 43. Me'iri, Baba Mezi'a 32b, is of the opinion that obligations concerning za'ar ba'alei ḥayyim are derived from the prohibition against muzzling an ox while it is engaged in threshing (Deuteronomy 25:4). Shitah Mekubezet, Baba Mezi'a 32b, suggests that these obligations may either be derived from the prohibition against muzzling an ox engaged in threshing or, alternatively, za'ar ba'alei ḥayyim may simply be the subject of halakhah le-Mosheh mi-Sinai, i.e., an oral teaching transmitted to Moses at Mount Sinai with no accompanying written record in the Pentateuch.¹⁴See also Minḥat Ḥinnukh, no. 80

And from this you will see how many people err in these things [to the extent] that if something is stolen from them, and they suspect someone, they tell the city dignitaries that they have "indications" against him, and they "beat and punish" not in accordance with the din to make him confess. And, in truth, this is not in accordance with the din. For if "indications" were like proof to the act [of theft] itself (and the city dignitaries are considered like beth-din), would they not have to know first that it [the object] were stolen? Would witnesses to the "indications" not be required, or they themselves have to see [the "indications"]? (as in the story of Mar Zutra, viz. Sanhedrin 46a), but not rely on the claimant and smite a Jew in vain! And even only to believe the claimant in their heart that this man stole from him is forbidden because of acceptance of lashon hara. How much more so, to rely upon this and to beat him, whereby they perform a great issur and transgress the negative commandment of "He shall not [smite] more!" (Devarim 25:3).

Some background is necessary to understand the Gemara’s case. If a man dies childless, the Torah (Devarim 25:4-11) obligates the brother of the deceased either to marry the widow (yibum) or participate in a ceremony in which he officially declines to marry her (chalitzah). If the deceased left offspring, however, there is no obligation for his brother to perform either yibum or chalitzah. The Mishnah (Yevamot 16:1) discusses a case where a woman’s husband died childless and the deceased husband did not have a brother, thus avoiding the requirement for yibum or chalitzah. However, the deceased husband’s mother remains alive in a distant land where the wife could not communicate with her. The Mishnah teaches that the wife need not be concerned that the mother gave birth to a male child who would be required to perform yibum or chalitzah because of what may be construed as a s’feik s’feika: “Perhaps she miscarried and perhaps she gave birth to a female.” It thus appears that such a s’feik s’feika is valid.¹¹Alternatively, the Gemara’s case could be understood as employing the principle of rov, as we noted earlier from the Chatam Sofer. Rav Zalman Nechemia Goldberg, however, understands s’feik s’feika to be merely a more potent form of rov, and thus one cannot distinguish between the two, since they are identical concepts. For further discussion of this issue, see Aruch Hashulchan Y.D. 110:96-98.

(Ayin) And now let every man be enlightened and understand the need for the unity of the rich and the poor and give charity at all times – and especially to poor Torah scholars, to strengthen them in the Torah of the Lord. And they said in the Talmud (Makkot 22b), “How foolish are […] people who stand before a Torah scroll, and [yet] do not stand before a great man; as in a Torah scroll, it is written (Deut. 25:3), ‘[He shall strike him] forty,’ but the Sages came and subtracted one.” And it is asked from that which they said in Kiddushin 33b, “What is [the law] as to [whether one should] stand before a Torah scroll?” And they said, “One stands before those who study it;⁵³Based on Lev. 19:32. [is it] not all the more so [the case] before it?” And it is implied from this that the honor of the Torah is greater than that of those who study it. And it appears to me that [the solution to this apparent contradiction can be found] according to what is written in Tiferet Yisrael:⁵⁴54Maharal, Tiferet Yisrael, Chap. 89 (p. 216 in the 1955 London edition).
As when we contemplate the creation of the Creator, [we see that] all created things require refinement and a different making – as it is [found] in the Midrash (Bereishit Rabbah 11:6), “Everything that was created in the six days of creation requires refinement and another making – wheat needs to be ground, mustard needs to be sweetened.” And since the Torah was given from God, may He be blessed, to a prophet, and the level of the intellect is greater than that of prophecy – and as we say (Bava Batra 12a), “A sage is greater than a prophet” – and just as the acts of the intellect are greater than the acts of nature, so too is [the intellect] greater than prophecy; and so, the sages are the essence of the Torah and its refinement. And because of that, “the Sages came and subtracted one, etc.” And the Torah came to the world like all [natural] things that are not refined, but are only refined by man through his intellect. And [so] the intellect refines the prophecy, etc. And in the Midrash (Tanchuma, Tazria 5), it is written, “Turnus Rufus asked Rabbi Akiva, ‘Which are the greater works, [those of the Holy One Blessed be He, or those of flesh and blood?’ [R. Akiva answered] him, ‘Those of flesh and blood are greater.’]” Behold, that even the acts of God, may He be blessed, require refinement, etc. And let it not be a wonder in your eyes how man refines the words of prophecy with his wisdom, and likewise how wisdom can refine nature, which was created by God, may He be blessed. As everything is from God, may He be blessed – nature, wisdom, creation and refinement. [See there.]
And this was their intention, may their memory be blessed: “Foolish are the people who stand before a Torah scroll, and [yet] do not stand before the rabbis” – as the essential refinement and completion of the Torah is through the Sages, who “subtracted one.” And behold this is like one who has a vineyard [and] ‘planted a choice vine, ‘but there is no man to work its land.’ Behold his vineyard is as if it were not [in existence]. However, if he hires workers and they work on the ‘vineyard in the fruitful corner’ – then ‘the crushers will call out, “heidad, heidad”; they shall sing of it, “Vineyard of Delight.”’ And nevertheless, the workers will not be the best of his possessions. Rather the vineyard [remains] the main thing. Yet he needs the workers; and without them, it will not be established. So is it with the Torah: If there were no Torah scholars to clarify and refine [it], it would be like a ‘sealed book’ – as you do not have any commandment explained in the Torah. We would not know how many sections [to include] and what to write in tefillin; and so with fringes (tsitsit), mezuzah, forbidden mixtures of fabric (shaatnez) and many like these. And regarding lashes, they subtracted one. So without the Torah scholars, the Torah would be as if it were not [in existence]. But [in the case that] we have already strengthened the hands of those that strengthen [the Torah] – the Torah scholars that refine it – and we have already ‘eaten its bread and drank its wine,’ [the Torah] is the main thing and not its workers. This is like a pearl: At the beginning of its being found, it is sealed and covered and not worth anything. But when one has a servant that pierces pearls, he transforms it and gives it great value. Nevertheless, the servant is not the main thing, but rather the pearls. And so is it with Torah: “If we stand before those that study it” – who are its workers and have already refined it and completed it – “[is it] not all the more so [the case] before it,” as it is the main thing. And understand [this].

The early seventeenth-century scholar, R. Joseph Trani of Constantinople, author of Teshuvot Maharit, also endeavors to show that the taking of fetal life, while forbidden, nevertheless cannot be considered as constituting a form of homicide.²²Teshuvot Maharit, I, no. 97 and no. 99. The Mishnah, Erukhin 7a, indicates that an expectant mother who has been sentenced to death, as long as she has not already "sat on the birth stool," must be executed without delay in order to spare her the agony of suspense. Whereupon the Gemara in its comments on this Mishnah exclaims "Peshita!—Of course!" R. Joseph Trani argues that if destruction of the fetus is tantamount to the taking of human life the amazement registered by the Gemara is out of place. The Gemara provides that the mother be struck on the abdomen against the womb in order to cause the prior death of the fetus. This is done in order to avoid the indignity which would be inflicted upon her body as a result of an attempt on the part of the fetus to emerge after the death of its mother. An act of murder certainly would not be condoned simply in order to spare the condemned undue agony or to prevent dishonor to a corpse.²³Other authorities refute this evidence on the grounds that the fetus is an organic part of the mother and hence under identical sentence as the mother. Since it will die in any event, there is no reason why it cannot be put to death earlier in order to spare the mother dishonor. Cf. Ḥavot Ya’ir, no. 31; She’elat Ya‘aveẓ, no. 43; Maharit, I, no. 97; and R. Ben-Zion Uziel, Mishpetei Uziel (Jerusalem, 5657), III, Ḥoshen Mishpat, no. 46. R. Joseph Trani then advances an alternative basis for this stricture. In his opinion, the destruction of an embryo is within the category of unlawful "wounding," which is banned on the basis of Deuteronomy 25:3.²⁴See n. 18. Cf. Seridei Esh, p. 249; and R. Moshe Yonah Zweig, No‘am, VIII (Jerusalem, 5725), 44 ff. Cf. however, Koaḥ Shor, no. 20, p. 34a, who argues that the prohibition of Deuteronomy 25:3 does not apply to the striking of a minor, much less to the injury of an embryo. The verse in question expressly refers to the punishment of forty stripes imposed by the Bet Din and admonishes the court not to administer more than the prescribed number of lashes. Other forms of physical assault are banned by implication: “If the Torah objects to the striking of a wicked man that he be not lashed more than in accordance with his wickedness, how much more so [does it object] to the striking of a righteous person” (Rambam, Hilkhot Sanhedrin 16:2). R. Schorr differs with Maharit and argues that only those who have reached their religious majority are included in this scriptural reference since only they are subject to the flagellation imposed by the Bet Din. However, R. Aryeh Lifshutz, Aryeh de-Bei Ila’i (Przemysl, 5634), Yoreh De‘ah, no. 6, advances this argument as conclusively demonstrating that Maharit is concerned with “wounding” of the mother rather than with injury of the fetus. This consideration is, of course, irrelevant in the case of one lawfully sentenced to death, and hence the Gemara raises an objection to the need for specific authorization for the execution of a pregnant woman sentenced to death. A more recent authority, Rabbi Joseph Rosen expresses a similar view.²⁵Teshuvot Ẓofnat Pa‘aneaḥ, no. 59. R. Ben-Zion Uziel, Mishpetei Uziel, p. 213, explains Tosafot’s mention of a ban against feticide as referring simply to the general obligation to be fruitful and multiply. One who does not engage in the fulfillment of this precept is accounted “as if he commits bloodshed” (Yevamot 63b). Although the context of the quotation deals with passive non-fullfillment of the miẓvah, this stricture is applicable all the more to an individual overtly seeking to prevent the development of an already existing life.

Ba'al ha-Turim, in his commentary to Numbers 32:21, presents the novel view that this practice was not King David's innovation but was originally introduced by Moses prior to the military engagements leading to the conquest of the land of Canaan. However, the purpose of the practice as instituted by Moses was somewhat more limited and was employed merely to obviate the necessity for levirate marriage or ḥalizah in the case of a childless widow. Ba'al ha-Turim's argument is predicated upon the philological relationship of ḥaluz ha-na'al ("unshod") of Deuteronomy 25:10 and the similar term ḥaluz ("armed warrior") in the previously cited passage. A warrior, according to this commentator, is called a ḥaluz because his occupation often necessitates the ceremony of ḥalizah entailing the removal of a shoe.

As it is required for the house of Israel to read from the scrolls, and to teach in the Torah, and to conclude with the prophets, on each day according to its subject matter — laws of Pesaḥ on Pesaḥ, laws of Shavuot on Shavuot, laws of Sukkot on Sukkot, as it is written "And Moses spoke the appointed-times of haShem to the children of Israel" (Leviticus 23:44), and it is commanded to read every matter at its time and extrapolate on the subject of the day, as taught, "Rabbi Shimon ben Elazar says:¹In our manuscripts, it says "The Rabbis taught" here. Moses ordained for Israel that they would investigate and extrapolate on the matter of the day — laws of Pesaḥ on Pesaḥ, laws of Shavuot on Shavuot, laws of Sukkot on Sukkot" (Megillah 32a:17). On Ḥanukkah we read the princes (Numbers 7). On Purim we read "And Amalek came" (Exodus 17:8—16). When Rosh Ḥodesh Adar falls on Shabbat we read the portion of the sheqalim (Exodus 30:11—16). "And Rabbi Yitzḥaq Nappaḥa said: when Rosh Ḥodesh Adar falls on Shabbat, bring three Torah scrolls, and read one for the matter of the day, and one for the new moon, and one from Ki Tissa. And Rabbi Yitzḥaq Nappaḥa said: when Rosh Ḥodesh Tevet falls on Shabbat, bring three Torah scrolls, and read one for the matter of the day, and one for Rosh Ḥodesh, and one for Ḥanukkah" (Megillah 29b:22). On Ḥanukkah and on Purim three people read, on Rosh Ḥodesh and on Ḥol ha-Moed four people read — since there is Musaf, we add [mosifin] a person. When Rosh Ḥodesh Adar falls on Shabbat, we read the portion of the sheqalim (Exodus 30:11—16). When it falls on another day of the week, we advance the reading of the portion of the sheqalim, and interrupt the special readings. On the second² Shabbat of the month we read 'Remember' (Deuteronomy 25:17—17). On the third, the red heifer (Numbers 19:1—22). On the fourth, 'This month' (Exodus 12:1—20). If it falls on the sixth, then 'This month' is on the fifth. After that they return to the regular order. And everyone interrupts the order for Rosh Hodesh, Ḥanukah, Purim, fast days, festival days, and Yom Kippur (Mishnah Megillah 3:5). On Pesaḥ they read the portion of the festivals. And a mnemonic is: "during the bull, sanctify with money, cut in the desert, send the firstborn." On Shavuot, "On the third day" (Exodus 19:1–20:23), and on the second day, "Every firstborn" (Deuteronomy 15:19—16:37). On Rosh Hashanah, "And haShem remembered Sarah" (Genesis 21:1–34) and on the second day, "And God tested Abraham" (Genesis 22:1—24). On Yom Kippur, "after the death" (Leviticus 16:1—34). On Sukkot, the offerings for Sukkot (Numbers 29:12—34). On Ḥanukkah, the princes (Numbers 7). On Purim, "And Amalek came" (Exodus 17:8—16). On Rosh Hodesh, "And on your new months" (Numbers 28:1–15). On the watches, the matter of creation (Genesis 1:1—2:3). On fast days, "And Moses petitioned" (Exodus 32:11—14, Exodus 34:1–10). On Mondays and Thursdays and on Shabbat in the afternoon they read according to the order, but they are not counted in the order. As it is said, "And Moses spoke the appointed-times of haShem to the children of Israel" (Leviticus 23:44) — it's commanded that they read each and every one at its time.

If one has five sons and they appoint their father as an agent to betroth for them⁸⁶(a woman). and the father of the sons says to one who has five daughters “One of your daughters is betrothed to one of my sons,” and the father accepts the betrothal,⁸⁷i.e., betrothal money. each one requires a bill of divorce from each brother. If one brother dies, all of them⁸⁸i.e., the daughters. require four bills of divorce and Halizah⁸⁹When the levin does not marry the yevamah (see note 30) the ceremony of Ḥalizah takes place, whereby the woman becomes released from the levirate tie and free to marry someone else. The ceremony is described in and originates from Deut. 25:7-10. The Ḥalizah ceremony is designed to shame the levin for not building up his brother’s house. The ceremony is completely described in Halchot Yevamot. (See article in the Encyclopedia Judaica vol. 13.) from one of them.

It also is important to stress that even when torture is permitted, it should not be conducted in an excessive manner. Just as speaking lashon hara (when it is required) is permitted only to the extent that is necessary and any exaggeration is strictly prohibited (Chafetz Chaim Hilchot Rechilut 9 and Hilchot Lashon Hara 10:2), torture is permitted only to the exact extent that is required to save lives.⁵³See Devarim 25:3, which specifically admonishes the court official who administers lashes not to hit the individual more than required.

“On the condition that my father will not protest,” if he hears and protests she is not betrothed. If he does not protest or dies behold she is betrothed (see close to here end of paragraph 10), if the son dies and afterward the father hears,¹¹⁵of the proposed betrothal. we instruct the father that he should say “I do not approve,” in order that there will be no betrothal and that she will not be subjected to the position of Yibbum.¹¹⁶This refers to the marriage between a widow whose husband died without offspring (the yevamah) and the brother of the deceased (the yavam or levir) which is prescribed in Deuteronomy 25:5-6. There are those who say that one who says “on condition that he¹¹⁷i.e., the father. approves” has the same ruling as one who says that he will not protest. There is one that says that the ruling is the same as one who says: “on condition that he be silent.”

Having established this principle with regard to the dayyan, Ramban applies it as well to the physician who errs in treating his patient. A person who commits a battery commits a transgression vis-à-vis his fellow man as evidenced by the requirement to compensate for the harm done. In causing physical harm to another, he also transgresses the divine commandment "he shall not exceed" (Deuteronomy 25:3).³¹The literal import of the verse is an admonition not to impose more than the prescribed number of lashes in punishing a miscreant. According to the Oral Law tradition the prohibition applies a fortiori to beating or “wounding” an innocent person. See Rashi, Deuteronomy 25:3; Sanhedrin 85a and Rashi, ad locum, s.v. ve-aḥer; and Rambam, Hilkhot Ḥoval u-Mazik 5:1. The physician who errs in treating his patient is not engaged in therapeutic "wounding" excluded from that prohibition; he has committed a simple battery and has reason to fear that he has committed an offence against the Deity. Fear of committing such a transgression might well serve to discourage the physician from engaging in his profession. The verse "and he shall cause him to be thoroughly healed," according to the understanding of the passage advanced by Ramban, serves completely to exonerate the physician from any transgression. In drawing a parallel between the dayyan and the physician Ramban undoubtedly intends to assert that any harm caused by the physician is the result of Heavenly decree. That concept is eloquently captured in the medical context in an aphorism coined by R. Moshe Hagiz: "The unintentional act of the physician is the intent of the Creator."³²This aphorism appears in R. Moshe Ḥagiz’ letter of approbation to R. Shlomoh Zalman Henau’s work on grammar, Sha’arei Torah (Hamburg, 5478). Since the erring physician is, in effect, a divine messenger, Heaven can hardly hold him responsible for the untoward results of his ministration.

Another version of what appears to be an identical attempt to resolve this difficulty is cited by Rabbi Joseph B. Soloveitchik in the name of his father, the late Rabbi Moshe Soloveitchik, in a footnote to his "Kol Dodi Dofek," Ha-Dat ve-ha-Medinah, ed. M. Rottenberg (Tel Aviv, 5724), pp. 192–93.⁷This article is also included in Torah u-Melukhah, ed. S. Federbush (Jerusalem, 5721) and forms the second part of Mosad ha-Rav Kook’s edition of Rabbi Soloveitchik’s Ish ha-Emunah (Jerusalem, 5735). Rabbi Soloveitchik argues that the commandment with regard to Amalek is really a twofold one: (1) an obligation devolving upon each individual Jew to destroy the genealogical descendants of Amalek; (2) a communal obligation to defend the Jewish people against any enemy threatening its destruction. These differing obligations are indeed recorded as separate commandments. The commandment recorded in Deuteronomy 25:19, "you shall erase the memory of Amalek," is addressed to all individual Jews and refers only to genealogical descendants of Amalek. Exodus 17:16, which speaks of "the war of God against Amalek," is addressed to the community as a whole and lends sanction to a preemptive war undertaken in the face of impending danger. Since the latter type of warfare, although categorized as a war against "Amalek," must be waged against any would-be aggressor, Rambam eliminates mention of the fact that the genealogical descendants of Amalek are no longer identifiable. This thesis leads to a conclusion contradictory to that of Rabbi Gershuni. While Rabbi Gershuni's explanation would lend sanction to a war of aggression against professed enemies, according to this analysis only preemptive or defensive wars may be undertaken even against the avowed foes of the people of Israel.

They teach her (the yevama) and the yavam to read, so that he and her will be fluent (in reading the required texts aloud) and able to recite "lo avah" (Deuteronomy 25:7 - he does not desire) in one breath. Note: They explain the nature of the proceedings to the yavam and the yevama, that she will be released from the yavam, and permitted to marry any man, and we ask them to have this intention, and they answer, "yes".

Not to strike father and mother: That a child should not strike the father and the mother, even if they strike him [very much], so long as their souls do not bring them to kill him, as it is stated (Exodus 21:15), "He who strikes his father or his mother shall surely be put to death." And even though the verse does not explicitly warn him about this, that it say to him, "Do not strike the fathers," but rather it only wrote the punishment of the one who strikes them - and it is the way of the Gemara to always ask about a matter like this and to say, "We have heard the punishment, from where is the warning" - here too, we have a warning: as behold, we are warned (Makkot 9a) for every person, not to strike him. As it is written about one who is liable for lashes (Deuteronomy 25:3), "Forty shall he strike him, he shall not add." And it is a fortiori (kal ve'chomer) about someone who is not liable [for lashes] - and the father is included in Israel. And [so] the warning [for the commandment] is from here. And [this must be the case] even though this negative commandment of "he shall not add," is considered a separate negative commandment on its own. Since we have a rule in our hands that anything that has for it excision or a death penalty must also have a negative commandment - except for the Pesach offering and circumcision - and behold with the striking of father and mother, [we know] that there is excision without witnesses and the death penalty with witnesses! And therefore, we have to say that we nonetheless learn the warning for it from the Scripture of "he shall not add," as we did not find it in [any] other place. And the main idea of the warning will be [about] all of Israel; but [also] included in it, we learn about the one who strikes mother and father. And they, may their memory be blessed, said (Sanhedrin 85b) that the case of this liability for death of the one that strikes is specifically when he brings out blood from them. [But it is] not the same with any other person - as even if he extracts blood from them, he is [only] liable for money.

They have the yevama recite (in Hebrew): "My yavam refuses to establish for his brother a name in Israel, he declines levirate marriage" (Deuteronomy 25:7). The words are narrated one at a time, except [the two words] "lo avah" (he declines) are read together. This recitation and the other recitations must be in the holy language. Note: if they (the yavam or yevama) in a word, he should return to the beginning of the text (Seder Maharil).

They have the yavam say, "I do not want to take her" (Deut. 25:8). And they say the word, "to take her," with a mappiq in the "he." Moreover, he must say these words in one breath.

The Gemara clearly establishes that the property of a minor cannot be seized to satisfy a debt if the sole justification for such seizure is performance on the obligation of repaying a creditor. It should then follow, mutatis mutandis, that body tissues of a minor cannot be "seized" in order to satisfy the duty of "nor shall you stand idly by the blood of your fellow." Minors are exempt from that obligation just as they are exempt from all other obligations. Quite apart from any pecuniary value that may attach to blood or to bone marrow, the biblical provision against battery establishes a right to bodily integrity.⁷⁹The prohibition against “wounding” (ḥavalah) is derived from the verse “Forty stripes he shall give him, he shall not exceed” (Deuteronomy 25:3) or from the immediately following phrase “lest he exceed” or from both phrases. See conflicting authorities cited in Encyclopedia Talmudit, XII (Jerusalem, 5727), 679–680. Although, in context, the verse speaks of a transgressor who has incurred the penalty of forty lashes, the prohibition applies to any illicit battery. As formulated by Rambam, Sefer ha-Miẓvot, lo ta‘aseh, no. 300 and idem, Hilkhot Sanhedrin 16:12, “If with regard to one whom Scripture permits to be smitten, the Torah forbids smiting more than warranted by his transgression, a fortiori, [this is forbidden] with regard to all other people.” Arguably, since in the case of a minor, that right is not limited by virtue of an obligation to suffer a "wound" in order to save the life of another, it would follow that the minor cannot be compelled to make such a donation.⁸⁰Cf., However, R. Isaac Schorr, Teshuvot Koaḥ Shor, no. 20, who asserts that “wounding” a minor entails no infraction of the biblical prohibition. He reasons that, since only an individual who has reached the age of halakhic majority can be punished by forty stripes, the entire verse, including the prohibition of imposing further lashes, applies only to an adult, but not to a minor. That view is not supported by any other halakhic source. Indeed, it might be argued that pediatric organ or tissue donations cannot be sanctioned even with the consent of the child. Since the Gemara, Pesaḥim 50b, declares that minors lack capacity for "forgiveness" (lav bnei meḥilah ninahu) their consent is of no halakhic import."⁸¹See R. Yitzchak Zilberstein, Halakhah u-Refu’ah, IV, 156–157. Rabbi Zilberstein’s citation of the ruling of Shulḥan Arukh, Ḥoshen Mishpat 96:4, regarding a minor’s lack of capacity to alienate property is a bit imprecise since the issue is not title to property but consent to an act that would otherwise constitute a tort.

"And the yevama shall approach him" (Deuteronomy 25:9), and loosens the knots of the shoe with her right hand, without the assistance of the left. She then opens the clasps, the lowest one first [and proceeding to the top]. She grasps his foot with her left hand, lifts it from the floor, removes the shoe from the heel, and takes off the entire shoe using her right hand without assistance from the left, and without assistance from the yavam, whether from his hand or his leg, and throws the shoe to the ground, at some distance. The yevama remains standing throughout this procedure, bent over but not sitting or kneeling. The Rabbi tells her to gather a large quantity of spittle in her mouth, not a yawn or a sneeze. She should not spit plain water, but only actual spittle.

They narrate to her in Hebrew [and she says]: "Thus shall be done to the man who will not establish his brother's house, and it shall be named in Israel the house of the shoe removal" (Deuteronomy 25:9-10). [They repeat] "the house of the shoe removal, the house of the shoe removal".

The controversy between Rabbi Eleazar ben Shimon and Rabbi Joshua ben Karḥah may well reflect disagreement regarding the level of certainty of impending loss of life that is required to trigger the law of pursuit. Even if Rabbi Joshua ben Karḥah did not himself appreciate the fact that the thieves were in actuality "pursuers" as well, once he heard Rabbi Eleazar ben Shimon declare "I am destroying thorns in the vineyard" Rabbi Joshua ben Karḥah's retort "Let the Master of the vineyard come and eradicate his thorns" is entirely inappropriate. Rabbi Joshua ben Karḥah acquiesces in the assignment of the appellation "thorns" to the evildoers. If so, to refrain from taking action against them would constitute a violation of the biblical command "And you shall cut off her hand, your eye shall not have pity" (Deuteronomy 25:12).³⁶Rambam, Hilkhot Roẓeaḥ 1:7, records the law of the “pursuer” as being predicated upon this verse.

This responsum of Maharit is quite remarkable not only for his unique characterization of abortion but for another reason as well. Although there is no dispute regarding the exclusion of therapeutic "wounding" from the prohibition "Forty stripes he shall give him, he shall not exceed" (Deuteronomy 25:3), classical sources describing permissible therapeutic "wounding" invariably describe "wounding" in the form of an incision or excision designed to be of therapeutic benefit to the patient himself. There is no reference in these sources to the "wounding" of one person for the therapeutic benefit of another. Yet that is precisely what Maharit permits. He rules that "wounding" the fetus in the course of its removal from the uterus is permitted in order to preserve maternal health, i.e., the wounding of the fetus is permitted for the therapeutic benefit of another, namely, the mother.⁸⁷The statement of R. Dimi bar Hinena, Sanhedrin 83b, “‘And he who kills a beast, he shall restore it; and he who kills a man, he shall be put to death’ (Leviticus 24:21): just as one who strikes an animal to heal it is not liable for damage so if one wounds a man to heal him he is not liable,” does not necessarily establish authority to “wound” a person for the benefit of a third party. Cf., R. Moshe Meiselman, Halakhah u-Refu’ah, II, 114. Nor does Rambam’s statement, Hilkhot ḥovel u-Mazik 5:1, limiting the prohibition to wounding “in the manner of strife” necessarily exclude wounding for the therapeutic benefit of a third party. Moreover, Rambam’s comments may serve to circumvent only the prohibition against “smiting” but not the prohibition against “wounding,” i.e., causing blood to flow. See R. Moshe Meiselman, ibid., p. 115, but cf., Iggerot Mosheh, Ḥoshen Mishpat, II, no. 66. Maharit's position is even more problematic in light of the fact that the fetus is a "minor." In positing an extension of the prohibition against "wounding" to encompass the fetus, Maharit establishes a fetus' right to bodily integrity. Since the fetus certainly has no obligation to preserve the life of another, much less so to preserve the health of another, it is remarkable that Maharit finds that it is permissible to "wound" the fetus in order to avoid a threat to maternal health.⁸⁸In Teshuvot Maharit, no. 99, Maharit makes no attempt to predicate his ruling sanctioning abortion for preservation of maternal health upon the premise “a fetus is a thigh of its mother” (ubar yerekh imo). In the first lines of Teshuvot Maharit, no. 97, Maharit states that feticide constitutes a transgression of the prohibition against “wounding” and only later in his discussion does he employ the principle “a fetus is a thigh of its mother.” See also R. Yechi’el Ya‘akov Weinberg, Seridei Esh, III, no. 127, who cites the statement of Tosafot, Sanhedrin 80b, in which Tosafot declares that a fetus preserves “independent animation” and hence the principle “a fetus is a thigh of its mother” does not render the fetus a treifah simply because its mother is a treifah. Similarly, argues Seridei Esh, since the fetus possesses “independent animation” its destruction in order to save the mother is not comparable to the removal of a limb in order to save the body. It is certainly noteworthy that, although Maharit's thesis concerning the nature of the prohibition entailed in performing an abortion was the subject of considerable controversy, there has been no challenge in rabbinic literature to the conclusion he draws from that thesis, i.e., that the "wounding" of the fetus is permissible for the purpose of preservation of maternal life or health. Indeed, it must be inferred that the authorities who challenge Maharit's ruling on other grounds would acquiesce in the position that an assault upon the fetus that does not lead to fetal mortality may be sanctioned for the purpose of preserving maternal health. The rationale underlying that conclusion requires explication.

It is correct that when you say "and chose us" to remember standing at Mt. Sinai , concerning 'chose us", as it is written "lest you forget the things....the day you stood before the Eternal Your God at Horeb(Deuteronomy 4:9)." And when you say, "Your great name, " remember the incident of Amalek that The Name is not whole until one wipes out the descendants of Amalek, as it is written, "Remember what Amalek did to you ..."(Deuteronomy 25:16)" And when you say, "To acknowledge You" remember that the mouth was created to acknowledge Him who is blessed and not to speak words of gossip. And remember the incident of Miriam, as it is written, "Remember what the Eternal your God did to Miriam...(Deuteronomy 24:8)" And when you say "In love" remember concerning what is written, "Remember how you provoked the Eternal your God in the wilderness (Deuteronomy 9:7)." And when you read, "And when you remember all of God's commandments", remember that Shabbat is equal to all the commandments, as it is written, " Remember the Sabbath day (Exodus 20:8)." As it is said, never forget the Sabbath day. And like Amram of blessed memory: From one Sabbath to the next Sabbath. And therefore in the Psalm of the day we read: "This is the first day of the Sabbath....." And when we say, "from the four corners of the earth," place the corners of the tallit that are upon his shoulders to fall downward. (Magen Avraham, small paragraph, Bet, and we are not concerned with this. See Pri Etz Chayim, Gate of the Recitation of the Shma, Chapter 3, and you will understand what we are not accustomed to. And be precise and find easy.)

Rabbi Israel adduces further evidence drawn from the discussion of a similar question pertaining to the obligation to rise in the presence of a Torah scholar. Halakhot Ketanot, I, no. 274, rules that one must rise even if the scholar is seen through an intervening pane of glass. Similarly, Shulḥan Arukh, Oraḥ Hayyim 75:5, states that the restriction against reading the shema in the presence of "nakedness" encompasses such utterances even if the "nakedness" is covered by glass. However, Rabbi Israel's conclusion that there is no halakhic distinction between perception by means of the naked eye and perception by means of an optical instrument is unwarranted. The sources dealing with rising in the presence of a scholar and the recitation of the shema in the presence of nakedness speak of intervening windows or sheets of glass which in no way magnify or distort vision. Under such conditions Halakhah deems the perception to be a true one. However, on the basis of these sources, the question of whether or not the perception of an object artificially magnified by means of a glass prism is the equivalent of "seeing" remains an open question. Evidence that it is not deemed a proper visual perception may be found in the previously cited statement of Sha'arei Teshuvah. As noted, this authority rules that the viewing of a telescopically magnified moon occasions the recitation of the sanctification of the New Moon precisely because that moon need not be actually seen, as evidenced by the obligation of a blind person vis-à-vis the sanctification of the New Moon. The clear implication of Sha'arei Teshuvah's discussion is that telescopic magnification does not result in re'iyah gemurah insofar as Halakhah is concerned and accordingly no blessing would be occasioned unless the comet is seen without magnification. However, Sha'arei Teshuvah does not cite Shevut Ya'akov's discussion in its entirety. Deuteronomy 25:9 prescribes that ḥalizah must be performed "before the eyes of the judges." Shevut Ya'akov addresses himself to the question of whether or not the members of a Bet Din convened for purposes of ḥalizah must be capable of seeing the performance of this rite without benefit of eyeglasses. Shevut Ya'akov concludes that inability to see without eyeglasses does not serve to disqualify a person from serving as a member of a Bet Din for this purpose. Not mentioned by these authorities is a possible distinction between eyeglasses, which simply correct a distortion caused by a malfunction of the eye thereby restoring normal vision to the wearer, and magnification by means of a telescope or other instrument which results in a vision not perceivable under normal conditions.

A final illuminating example of a halachic evaluation of archaeological evidence is a teshuvah of Rav Moshe Shternbuch (Mo’adim Uzmanim 2:166 footnote 2) in which he discusses the celebrated dispute surrounding how to write the Hebrew letter tzadi in Torah scrolls. He reports that ancient tefillin that have been dated to the time of the Bar Kochba revolt support the non-Chassidic, Ashkenazic tradition regarding the shape of this letter. Although Rav Shternbuch expresses very serious reservations about relying on archaeological findings regarding halachic matters, he writes that the tefillin nonetheless demonstrate that many Jews used the non-Chassidic, Ashkenazic style in ancient times. Thus, the Vilna Gaon and the Chazon Ish (O.C. 9:6) are supported in their insistence that non-Chassidic Ashkenazim not deviate from their tradition of how to write the tzadi. Rav Shternbuch even urges them to be sure to hear parashat zachor³⁰This is the section from Devarim 25:17-19 that is read the Shabbat before Purim. The consensus amongst poskim is that this reading is biblically mandated (see Shulchan Aruch O.C. 685:7). As such, we are more stringent regarding the requirements for this reading (see, for example, Mishnah Berurah ibid. 18). read from a Torah scroll whose letters are written in accordance with this tradition. He does not suggest, though, that Sephardic or Chassidic Jews alter their practice based on the archaeological evidence; he merely uses the artifacts as support for those who follow the Ashkenazic practice in this matter. Indeed, it is entirely possible that in the future, tefillin will be found supporting the Sephardic and Chassidic tzadi. Moreover, the mid-twentieth-century work Tzidkat Hatzaddik, written expressly to defend the Chassidic and Sephardic form of the tzadi, includes (p. 40) a picture of a Torah scroll written by the Ran in which the tzadi is indeed written in the style of the Sephardim and Chassidim (also see Teshuvot Yabia Omer 2 Y.D.20).³¹Another example of a question that could be resolved by archaeology is the size of eggs and olives. The Teshuvot Noda Biy’huda (1 O.C. 38; see also Mishnah Berurah 486:1 and Bei’ur Halachah 271:13 s.v. Shel Revi’it) asserts that eggs today are half as large as those in the times of Chazal, thereby requiring us to use the equivalent of two modern day eggs in order to determine the shiurim of an egg (required for Halachot such as sitting in the sukkah; Shulchan Aruch O.C. 639:2) and an olive (one half of an egg, the shiur required for many mitzvot, including matzah; Shulchan Aruch O.C. 486:1). Other poskim, such as the Aruch Hashulchan (O.C. 168:13 and 472:12), question the Noda Biy’huda’s claim. Professor
Avraham Yehudah Greenfield (Techumin 16:433-442) marshals archaeological (and other) evidence that the size of eggs has not changed dramatically since the times of Chazal. Similarly, researchers at Bar-Ilan University announced in 2008 (reported by the Jerusalem Post, April 11, 2008) that they had discovered that the olives in the times of Chazal were in fact smaller than those available today, which would make the shiur of an olive smaller than is commonly assumed. However, the Chazon Ish (O.C. 39:6) rules that the shiurim given by Chazal are by definition imprecise and can be calculated based only on the olives and eggs of each time and place, a position that eliminates the halachic impact of these archaeological findings.

The right to claim compensation for damages resulting from a battery is quite distinct from the prohibition regarding "wounding." The prohibition against wounding is derived from Deuteronomy 25:3 and is in the nature of a "criminal" offense; liability for damages is derived from Exodus 21:19–25 and is in the nature of a civil remedy. Therapeutic wounding is excluded only from the prohibition recorded in Deuteronomy 25:3. Thus, therapeutic wounding may be entirely permissible and yet result in tort liability. Tosafot, Baba Kamma 60b, and Rosh, Baba Kamma 6:12 and Sanhedrin 8:12, rule that the victim whose life has been saved must compensate the rescuer for expenses incurred in the rescue. It should logically follow that the rescuer is also entitled to compensation for injuries to his person sustained in the rescue endeavor. The selfsame principle should logically apply to intentional "wounding" for the purpose of saving the life of another. Indeed, Hagahot Mordekhai, Sanhedrin, sec. 718, declares that a person may cut off the limb of another in order to save his own life "but must pay him the value of his hand." As has been shown earlier, Hagahot Mordekhai's ruling regarding committing an act of mayhem in order to preserve one's own life is decidedly a minority opinion but, if that position is indeed accepted, his ruling regarding tort liability appears to be unexceptional. A fortiori, in situations in which the person wounded is under no obligation to render assistance, he should be entitled to damages for any wound sustained, including compensation for pain and suffering. A minor is certainly not bound by any biblical commandment. Hence, even in circumstances in which a minor's bone marrow may be removed for purposes of transplantation, the minor would be fully entitled to receive compensation for tort damages to the extent that damages for battery are actionable in our era.¹⁰⁴See Shulḥan Arukh, Ḥoshen Mishpat 1:2 and 1:8.

The law of pursuit has two distinct formulations. When the pursuer is intent upon the death of his victim there is an absolute duty to eliminate such threat. Even a bystander must intervene and dare not plead that he declines to save one human life at the cost of another. Rambam, Hilkhot Rozeaḥ 1:9, writes, "This, too, is a negative commandment: not to spare the life of a pursuer." The positive obligation is cited by Rambam, Hilkhot Rozeaḥ 1:7, and predicated upon the verse "And you shall cut off her hand, your eye shall not pity her" (Deuteronomy 25:12). Yet another formulation of the law of pursuit is found in Exodus 22:1: "If a thief be found breaking in, and be smitten that he die, there shall be no blood shed for him." Scripture here provides that one who kills a thief incurs no punishment. The Gemara, Sanhedrin 72a, explains that it is to be assumed that a person will not permit his property to be seized unlawfully without offering resistance. The thief is deemed to be well aware of this instinctive psychological reaction and hence it is presumed that he is prepared to use lethal force should he meet with resistance in carrying out his design. Accordingly, the thief is presumed to be a "pursuer" whose life is forfeit. However, in codifying this law, Rambam, Hilkhot Geneivah 9:7, states only that "All persons have permission to kill [the thief] whether on a weekday or on the Sabbath" but fails to posit an absolute obligation to eliminate the thief as a pursuer. It may be posited that the distinction between the thief who is the subject of this ruling and the aggressor described in Hilkhot Rozeaḥ whose life is always forfeit lies in the fact that the latter is actually intent upon an act of aggression while the former, although he may become an aggressor, is not yet engaged in an actual act of aggression. Elimination of the thief is a preemptive act. Such an act is permissible but is not mandatory.

The commandment of eating the remainders of the meal-offering: That the priests were commanded to eat the remainders of the meal-offerings - meaning to say after they separated from it that which they would offer on the altar, they would eat all the rest, as it is stated (Leviticus 6:9), "What is left of it shall be eaten by Aharon and his sons; as matsahs shall it be eaten, etc." And the language of Sifra, Tzav 2:9 is "'As matsahs shall it be eaten' is a commadmeent; 'her levirate husband shall have sexual relations with her' (Deuteronomy 25:5) is a commandment" - meaning to say that both of them are positive commandments, not optional.

Someone whose brother by his father died and did not leave descendants, it is a commandment to perform levirate marriage with his wife, whether she is his wife from marriage or his wife from betrothal, as it is written: "When brothers dwell together and one of them dies and has no son, her yavam shall go in unto her" (Devarim 25:5)

It says in the Torah: "And a son is not to him" (Deuteronomy 25:5 is discussing when somebody does yibbum) one son and one daughter, or the seed of a son and the seed of a daughter, until the end of the generation, between this woman to another. Even if it was a seed for a bastard. Behold these exempt a wife from doing chalitza and yibbum. But his sons with a slave or a non-jew don't exempt (yibbum and chalitza), even if the son (of the slave or non-jew) is converted to freed (rambam perk 1 hilchot yibbum and chalitza). And there are people who say that the son of another (not his) female slave counts, but his female slaves son doesn't count to exempt.

If she spit, and the wind caught it before it reached opposite his face, like a case where she is taller than him, then she needs to spit another time. But, [if the wind catches it] after the spit reaches opposite his face, even if it did not reach the ground, valid. Therefore, if he is tall and she is short, we apply the verse better "in his face." (Devarim 25:9):

After so, [the group will] teach her [the following words while he is] standing, "So shall it be done unto the man that doth not build up his brother’s house. And his name shall be called in Israel The house of him that had his shoe loosed " (Deuteronomy 25:9-10). It is a commandment to all present to say "Shoe loosed" three times, and there are there are those who say that the childless widow awaiting Levirate marriage also says so.

This is the order of the Chalitsah: She reads "My brother-in-law has refused" (Devarim 25:7), and he reads "I do not desire to take her" (Devarim 25:8), and she removes [the shoe], and she spits, and she reads "so will be done to the man" (Devarim 25:9-10), but the order does not impinge [on the validity of the ceremony]. Moreover, even if she did not read or spit but only removed [the shoe], the Chalitsah is valid. When is this the case? when they are able to speak, such that they are fit to read. But if either the man or the woman is mute or the woman is a minor, they don't perform Chalitsah, and if they did, their Chalitsah is invalid. This is different than the case if the man is mentally disabled or a minor, in which case they have accomplished nothing, such that she is not invalidated to the brothers and can perform Yibum or not. Some say that this is also the rule for Chalitsah where either the man or woman is deaf that it is nothing. And some say that their Chalitsah is invalid, like with a mute man or woman.

This is the order of the Chalitsah: She reads "My brother-in-law has refused" (Devarim 25:7), and he reads "I do not desire to take her" (Devarim 25:8), and she removes [the shoe], and she spits, and she reads "so will be done to the man" (Devarim 25:9-10), but the order does not impinge [on the validity of the ceremony]. Moreover, even if she did not read or spit but only removed [the shoe], the Chalitsah is valid. When is this the case? when they are able to speak, such that they are fit to read. But if either the man or the woman is mute or the woman is a minor, they don't perform Chalitsah, and if they did, their Chalitsah is invalid. This is different than the case if the man is mentally disabled or a minor, in which case they have accomplished nothing, such that she is not invalidated to the brothers and can perform Yibum or not. Some say that this is also the rule for Chalitsah where either the man or woman is deaf that it is nothing. And some say that their Chalitsah is invalid, like with a mute man or woman.

This is the order of the Chalitsah: She reads "My brother-in-law has refused" (Devarim 25:7), and he reads "I do not desire to take her" (Devarim 25:8), and she removes [the shoe], and she spits, and she reads "so will be done to the man" (Devarim 25:9-10), but the order does not impinge [on the validity of the ceremony]. Moreover, even if she did not read or spit but only removed [the shoe], the Chalitsah is valid. When is this the case? when they are able to speak, such that they are fit to read. But if either the man or the woman is mute or the woman is a minor, they don't perform Chalitsah, and if they did, their Chalitsah is invalid. This is different than the case if the man is mentally disabled or a minor, in which case they have accomplished nothing, such that she is not invalidated to the brothers and can perform Yibum or not. Some say that this is also the rule for Chalitsah where either the man or woman is deaf that it is nothing. And some say that their Chalitsah is invalid, like with a mute man or woman.

That is that He commanded us to reward a Hebrew (Jewish) slave when he goes free, and not to have him leave [his owner's domain] empty-handed. And that is His saying, "You shall surely reward him" (Deuteronomy 15:8). And the regulations of this commandment have already been explained in the first chapter of Kiddushin. (See Parashat Re'eh; Mishneh Torah, Slaves 3.)

That is that He commanded us that a yevamah (levirate wife) release her yavam if he does not marry her. And that is His, may He be exalted, saying, "and she shall release his shoe" (Deuteronomy 25:9). And the regulations of this commandment have already been explained in Tractate Yevamot. And you already know their saying (Yevamot 39b), "The commandment of yibum (levirate marriage) takes precedence over release." And that is why [the tractate] is called Yevamot, even though it includes the laws of levirate marriage and of release, equally. (See Parashat Ki Tetzei; Mishneh Torah, Levirate Marriage and Release.)

That is that He commanded us to save someone pursued, even through the life of the pursuer - meaning that we are commanded to kill the pursuer, if we are only able to save the pursued by [taking] the life of the pursuer. And that is His, may He be exalted, saying, "And you shall cut off her hand; you shall have no pity" (Deuteronomy 25:12). And the language of the Sifrei (Sifrei Devarim 292:5-293:1) is, "'By his genitals' (Deuteronomy 25:11) - what is unique about his genitals? They place his life in danger - hence it [comes] with, 'And you shall cut off her hand.' This teaches that you are obligated to save him through [cutting off] her hand. From where [do we know] that if you are not able to rescue him through her hand, that you may rescue him with her life? [Hence] we learn to say, 'you shall have no pity.'" Behold that the content of this command has already become clear to you; and that His saying, "the wife of one," was the verse merely speaking with what is common. But the intention is to save the pursued through [injuring one] of the limbs of the pursuer. And if it is impossible to save him without the death of the pursuer, he should kill him at once. And the laws of this commandment have already been explained in Chapter 5 of Sanhedrin. (See Parashat Ki Tetzei; Mishneh Torah, Murderer and the Preservation of Life 1.)

And Ramban, may his memory be blessed, does not hold of this approach and he does not lean towards it; but [rather] he holds that there always be an explicit warning about the one to be lashed or about the one being killed - and not from a general negative commandment. And even if Scripture makes his death penalty explicit a hundred times, the Rabbi will still say that it does not punish unless it warns (and not from a general negative commandment). And he does not consider a general negative commandment as a warning in the place of lashes, because of that which is a famous law in our hands, "We do not administer lashes for a general negative commandment." And therefore he, may his memory be blessed, said that they already clarified in the Gemara from which verse we learned to administer lashes to the rebellious son: And they said in Sanhedrin 71b, "It is like Rabbi Abahu, as Rabbi Abahu said, 'We learned lashes for one who puts out a bad name, as it is written about him (Deuteronomy 22:18), "and they shall chasten him," from "and they chastised him" (Deuteronomy 21:18) that is written about the rebellious son; and "son" from "son" [in] "And if the evildoer be a son of (liable for) lashing" (Deuteronomy 25:2).'" And there is also a difficulty for Rambam, may his memory be blessed, in this, [since] he writes in the second root, that we do not give lashes by the power of a comparison (which is what seems to be indicated here). And he also challenged the Rabbi about his statement that the rebellious son is liable for the death penalty for his indulging in much eating and he did not distinguish between the first eating and the second. But they said explicitly in the Gemara in Sanhedrin 71 that we do not punish the first eating of the rebellious son with the death penalty, but rather lashes, as they said, "We warn him in front of two [witnesses] and we lash him in front of three. [If] he goes back and goes bad, he is judged by twenty-three [judges for the death penalty]." He, may his memory be blessed, also wrote and this is his language, "And what is fit to take out from this is that the first eating is prevented (forbidden) and its punishment is lashes, and the punishment of the second is death, and they are two preventions (negative commandments) in the tally of commandments, and they are [both] included in 'You shall not eat upon the blood.'" To here [are his words].

And [it] is practiced in every place and at all times by males and females. And one who transgresses it and lies about measures of length, weight, or capacity has transgressed a negative commandment. But we do not administer lashes for it, because it is given to repayment. And (Ramban) [Rambam], may his memory be blessed, wrote (Mishneh Torah, Laws of Theft 7:8) that if one lied in measures even to a gentile that worships idolatry, he has transgressed a negative commandment and he is obligated to return [it]. And likewise is it forbidden to fool gentiles in calculations, as it is stated (Leviticus 25:50), "And calculate with his owner" - even if he is subjugated under your hand; all the more so towards a gentile that is not subjugated under your hand. And behold, it states (Deuteronomy 25:16), "For it is an abomination of God [...] anyone who does perversion" - in any case.

That He prohibited us from having weights and measures that are deficient, with us in our homes - even though one does not buy and sell with them. And that is His, may He be exalted, saying, "You are not to have for yourself in your pouch varying weight-stones, large and small" (Deuteronomy 25:13); and likewise, "varying ephah measurements" (Deuteronomy 25:14). And the language of the Gemara, Batra (Bava Batra 89b), is, "It is prohibited for a person to keep in his house a measure that is deficient or inflated, even if [he only uses it as] a chamber pot for urine." And you should not think that His saying, "You are not to have for yourself [...] "varying ephah measurements"; and "You are not to have for yourself [...] varying weight-stones" - [signifies] that they are two [distinct] negative commandments. Indeed, it is coming to round out the laws of the commandment, so that the types of measures are explained - and they are weight and measurement. It is as if He would say, "You should not have two measures with you - not for measuring, and not for weighing," as we explained in the Positive Commandments (Sefer HaMitzvot, Positive Commandments 208). And His saying, "You are not to have for yourself [...] varying weight-stones"; and "You are not to have for yourself [...] varying ephah measurements" - is like His saying, "You shall not charge interest to your brother; interest of money, interest of food, interest of anything upon which interest can be charged" (Deuteronomy 23:20) - which is one negative commandment that includes many types, all of which have the very same content. And it is not from the repetition of language that there is an expansion of commandments, as we discussed earlier in Principle 9. And something like this negative commandment already came before us; and that is His saying, ""no chametz may be seen [...], and no leaven may be seen" (Exodus 13:7). (See Parashat Ki Tetzei; Mishneh Torah, Theft 7.)

That He prohibited us from having weights and measures that are deficient, with us in our homes - even though one does not buy and sell with them. And that is His, may He be exalted, saying, "You are not to have for yourself in your pouch varying weight-stones, large and small" (Deuteronomy 25:13); and likewise, "varying ephah measurements" (Deuteronomy 25:14). And the language of the Gemara, Batra (Bava Batra 89b), is, "It is prohibited for a person to keep in his house a measure that is deficient or inflated, even if [he only uses it as] a chamber pot for urine." And you should not think that His saying, "You are not to have for yourself [...] "varying ephah measurements"; and "You are not to have for yourself [...] varying weight-stones" - [signifies] that they are two [distinct] negative commandments. Indeed, it is coming to round out the laws of the commandment, so that the types of measures are explained - and they are weight and measurement. It is as if He would say, "You should not have two measures with you - not for measuring, and not for weighing," as we explained in the Positive Commandments (Sefer HaMitzvot, Positive Commandments 208). And His saying, "You are not to have for yourself [...] varying weight-stones"; and "You are not to have for yourself [...] varying ephah measurements" - is like His saying, "You shall not charge interest to your brother; interest of money, interest of food, interest of anything upon which interest can be charged" (Deuteronomy 23:20) - which is one negative commandment that includes many types, all of which have the very same content. And it is not from the repetition of language that there is an expansion of commandments, as we discussed earlier in Principle 9. And something like this negative commandment already came before us; and that is His saying, ""no chametz may be seen [...], and no leaven may be seen" (Exodus 13:7). (See Parashat Ki Tetzei; Mishneh Torah, Theft 7.)

That He prohibited the judge from striking the sinner with great lethal strikes. And the explanation of this is that the limit on all those who are liable for lashes is surely that he is lashed forty minus one, as it appears in the tradition; such that he not strike a person until he assesses the man that will be struck, according to his strength, his years, his condition and the form of his body. If he can withstand the entire striking of the punishment, he is struck [accordingly]. But if not, he is struck according to the measure of what he can withstand - [though] not less than three lashes, [based on] His saying, "according to his wickedness in number" (Deuteronomy 25:2). And the prohibition comes about adding - even one lash beyond the judge's assessment of what he can withstand - to his striking. And that is His saying, "according to his wickedness in number. Forty is he to strike him, he may not add" (Deuteronomy 25:2-3). And the language of the Sifrei (Sifrei Devarim 286:10) is, "If he does add, he transgresses a negative commandment. I only know of his adding to the forty. From where [do we know the same for his going beyond] each and every assessment that the court assessed? Hence we learn to say, 'he may not add, lest he add.'" And from this prohibition is [derived] the prohibition to strike any Israelite - if we are prohibited from striking the sinner, all the more so do we not strike any [other] person. And He already prohibited us from hinting as if one will strike, even if he does not strike. They said (Sanhedrin 58b), "Anyone who raises his hand against his fellow is called, an evildoer - as it is stated (Exodus 2:13), 'and he said to the evildoer, "Why would you strike your fellow."'" (See Parashat Shoftim; Mishneh Torah, The Sanhedrin and the Penalties within their Jurisdiction 16.)

He prohibited hitting father and mother. And also about this is there no explicit prohibition, but He mentioned the punishment and said, "And if one strikes his father or his mother, he shall surely die" (Exodus 21:15). And we learned the prohibition about the one who strikes his father, in the way that we learned it about the one who curses his father. And that is since it has already been explained in Commandment 200 (Sefer HaMitzvot, Negative Commandments 200) that we are prohibited about hitting anyone, his father is included. And the language of the Mekhilta (Mekhilta d'Rabbi Yishmael 21:15:4) is, "'And if one strikes his father or his mother, etc.' - we have heard the punishment; from where [do we know] the prohibition? [Hence] we learn to say, 'Forty is he to strike him, he may not add' (Deuteronomy 25:3). Behold these matters are a fortiori, viz.: If one who is commanded to strike one is exhorted not to strike him; his father or mother, who he is commanded not to strike, is it not the law that he is commanded not to strike him?" And one who transgresses this negative commandment - meaning to say, he strikes his father or mother volitionally and draws blood from them - is liable for strangulation. And the laws of this commandment have already been explained at the end of Sanhedrin. (See Parashat Mishpatim; Mishneh Torah, Rebels 5.)

To do to the collusive witness like he colluded: That we were commanded to do to the witnesses that testified false testimony according to what they sought to damage the one they testified against with their testimony - whether with money, with lashes or with death. And even though it is possible [for the witnesses to do this damage] without an act, they are lashed; due to the inclusion from the verse (Deuteronomy 25:1), "and they shall justify the righteous one, etc.," as it is found in the chapter [entitled] Arba Mitot (Sanhedrin 25a). And about this is it stated (Deuteronomy 19:19), "And they shall do to him like he colluded to do to his brother." And this is the law of the colluding witnesses mentioned in the Gemara in many places. And the content of collusion is that two witnesses come and contradict the first ones about their testimony - for example, that they say to them, "But how can you testify about thing x? And is it not that on that day that you are saying that story [happened], you were not in the place that you say it happened there, but rather you were with us in a different place?" This is the crux of refutation [of collusive] testimony. And the Torah commanded us to believe the latter witnesses over the first - whether the first were two, or even a hundred or more, as regarding testimony, two is like a hundred, and a hundred is like two.

The commandment to lash the evildoer: That the court was commanded to lash those transgressing some of the commandments of the Torah, and this is the matter of lashes mentioned in the Gemara - and like the matter that I have written in each and every commandment that has the liability for lashes with it, and as I will [likewise] write in that which I will write in the future, with God's help. And about this is it stated (Deuteronomy 25:2), "and the judge shall have him lie down and be given lashes in his presence, as his guilt warrants, etc."

To not increase in flogging him: That the judge has been prevented from flogging the sinner extensive floggings. And the elucidation of this matter is like this: That the limit of lashes for anyone who is liable for lashes is forty strikes minus one, as has come through the tradition (see Sefer HaMitzvot LaRambam, Mitzvot Lo Taase 300). And he should not flog anyone until he has appraised the flogging, that it should be according to the ability of the one struck, and his years and his constitution and the form of his body. And if he can withstand the flogging of the complete maximum punishment, he flogs [him accordingly]. And if he cannot withstand it, [the judge] flogs [him] according to his ability [to withstand it]. And there is never less than three strikes, and the fullness of the count of the number of strikes is always forty minus one, as we have said. And this prevention comes [that he not] increase striking him even one strike upon this number or upon that which the judge appraised that he can withstand. And about all of this is it stated (Deuteronomy 25:3), "you shall not increase." And so did they say in Sifrei, "If he increases, he transgresses a negative commandment. [From here] I only have if he increases on the forty. From where [do I know that it also applies] to each and every estimation that the court estimated about him? [Hence] we learn to say, 'You shall not increase, lest you increase.'"

From the laws of the commandment is that which they, may their memory be blessed, said (see Mishneh Torah, The Sanhedrin and the Penalties within their Jurisdiction 16:2) [that] when we estimate how many strikes the sinner can withstand, we only estimate with [a number] of strikes that is divisible by three. If they estimated about him that he could take twenty, we do not say to lash him twenty-one - since they are divisible by three - but rather we lash him eighteen. And [regarding] one who was estimated for lashes, and when they began to lash him, he broke down and defecated or urinated, we do not lash him any more, as it states (Deuteronomy 25:3), "and your brother be degraded before your eyes" - from when he is degraded, he is exempted. If the strap split before they finished lashing him - even after the first strike - he is exempted. [If] they tied him to the column and he took off the strings with his strength and ran away, he is exempt. Anyone who has sinned and is lashed goes back to being [considered] proper, as it states, "and your brother be degraded" - once he is degraded, he is your brother. And even [about] all those obligated in excision that received lashes, they, may their memory be blessed, said (Makkot 23a) that [they are] exempted from their excisions. And the rest of the details of the commandment are explained in Tractate Makkot [in the third chapter].

To not muzzle an animal at the time of its work: To not prevent an animal from eating that which it is working on, at the time of its work - for example, when it threshes grain or carries straw from place to place on its back - as we do not have permission to prevent it from eating from it. And about this is it stated (Deuteronomy 25:4), "You shall not muzzle an ox in its threshing."

That a levirate wife not marry another until she is released: That every man of Israel is prevented from having intercourse with the levirate wife while she is still bound with the levirate husband. And about this was it stated (Deuteronomy 25:5), "the wife of the deceased shall not be married to a stranger, outside the family; the levirate husband shall have intercourse with her."

The commandment of levirate marriage: That one whose brother died and did not leave children was commanded to take the wife of his dead brother as a wife. And this is what is called yibum in the Torah and [in] the words of our rabbis, may their memory be blessed. And about this was it stated (Deuteronomy 25:5), "the levirate husband shall have intercourse with her, etc."

The commandment of release (chalitsah): That we have been commanded (see Sefer HaMitzvot LaRambam, Mitzvot Ase 217) that the levirate wife removes the shoe of the levirate husband from upon his foot when he does not want to marry her as a wife. And about this is it stated (Deuteronomy 25:9), "and she removes the shoe from upon his foot."

The commandment to save the pursued with the life of the pursuer: That we were commanded to save the pursued from one who is pursuing him to kill him, and even [at the expense of] the life of the pursuer - meaning to say, that we are commanded to kill the pursuer if we are not able to save the pursued unless we kill the pursuer. And about this is it stated (Deuteronomy 25:12), "You shall cut off her hand; show no pity." And they said in Sifrei (see Sefer HaMitzvot LaRambam, Mitzvot Ase 247), "'And she seizes him by his genitals' - and just like that place is distinguished by a danger to life (sakanat nefashot) and it says about it, 'You shall cut off her hand'; so too anything that has a danger to life, behold it is [included] in 'You shall cut off her hand.' And from where [do I know] that if he cannot save him with only her hand, that he is obligated to save him with her life? [Hence,] it teaches us to say, 'show no pity.'" And that which the verse stated "the wife of one," [is because] the verse was speaking according to what is common; as the wife of a person is always with him and tries to save him from his attacker with all of her strength; but it is the same with any person.

To not have concern about the pursuer That we have been prevented from having compassion for the life of the pursuer. And the elucidation of this commandment is like I have written in its positive commandment in this Order (Sefer HaChinukh 600): That the tradition came to us about two sins - which are murder and sexual prohibitions - that if we see him pursuing to do one of them, we must always prevent him with all of our strength. And if he does not want to desist with words from doing the sin, and we are able to save from his hand the man or woman pursued, with one of his limbs, we must chop it off. And if it is impossible for us to save the pursued if we do not kill the pursuer, we must kill him. And about this comes the prevention to us, that we should not have compassion upon him; but rather we should kill him nonetheless - if it is impossible for us to save the pursued in any other way than by [taking] his life. And about this is it stated (Deuteronomy 25:12), "You shall cut off her hand; show no pity." And the language of Sifrei is "'You shall cut off her hand' teaches that you are obligated to save him with her hand. And from where [do I know even] with his life? [Hence,] it teaches us to say, 'show no pity.'"

To not hold over deficient weights and measures: That we have been prevented, that we not hold over the deficient weights and scales in our homes - and even if we don't take and give (measure) with them in our purchases and in our sales, lest it be a snare. And about this is it stated (Deuteronomy 25:13), "You shall not have in your pouch alternate weights, larger and smaller." And so [too] (Deuteronomy 25:14), "You shall not have in your house alternate measures." And so did they, may their memory be blessed, say in Bava Batra 89b, "It is forbidden for a person to hold over a deficient or oversized weight in the midst of his home, and even if it is [used as a] bedpan for urine."

To not hold over deficient weights and measures: That we have been prevented, that we not hold over the deficient weights and scales in our homes - and even if we don't take and give (measure) with them in our purchases and in our sales, lest it be a snare. And about this is it stated (Deuteronomy 25:13), "You shall not have in your pouch alternate weights, larger and smaller." And so [too] (Deuteronomy 25:14), "You shall not have in your house alternate measures." And so did they, may their memory be blessed, say in Bava Batra 89b, "It is forbidden for a person to hold over a deficient or oversized weight in the midst of his home, and even if it is [used as a] bedpan for urine."

To remember what Amalek did to us: That we were commanded to remember what Amalek did to Israel - that he began to harass them when they left Egypt, before any other nation or kingdom raised their hand against them; and as the matter is stated, (Numbers 24:2) "Amalek is the first of nations." Its [Aramaic] translation (Onkelos Numbers 24:2) is "The first battle of Israel was Amalek" - because everyone was afraid of them when they heard of God's great hand that He used for them in Egypt. But the Amalekites, due to their evil hearts and evil disposition, did not turn their hearts to all of this, and harassed them [by waging war]. And as a result of this, Amalek was able to remove the great fear from the hearts of the other nations. And it is like the matter that our Rabbis, may their memory be blessed, analogized it (Pesikta Rabbati 12, Midrash Tanchuma on Devarim 25:17) to the analogy to a large boiling pot that no person could enter and [then] one [individual] comes and jumps and enters it. Even though he is burnt, he cools it for others. And about the memory of their matter is it stated (Deuteronomy 25:17), "Remember what Amalek did to you on your journey, after you left Egypt."

To blot out his seed from the world: That we were commanded to blot out the seed of Amalek and to destroy his memory from the world - male and female, old and young. And about this is it stated (Deuteronomy 25:19), "you shall blot out the memory (zekher) of Amalek" - as all are included in "the memory." And a great man of the generation (gadol hador) already erred in the vocalization of this word - and that was Yoav ben Tzeruiah - and he left over the females from them. As many were those that did not pay careful attention when they learned this verse and Yoav jumbled [it] and read "male" (zakhar) instead of "memory" (zekher), as it comes [down] in Bava Batra 21b in the chapter [entitled] Lo Yachpor.

To not forget what he did to us: That we have been prevented from forgetting that which Amalek did with us - meaning to say, his starting to harm us [before anyone else]. And about this is it stated (Deuteronomy 25:19), "do not forget." And is written in Sifrei [that] "Remember" is with the mouth [and] "do not forget" is with the heart - meaning to say do not cast down hatred of him and do not remove it from you soul, in the manner that you will forget it.

One may immerse (inaritual bath³⁰Mikveh, מקוה, is a pool or a bath of clear water. When a person immerses in it, it renders ritual cleanliness to one who has become ritually unclean through contact with the dead (Numbers 19) or any other defiling object, or through an unclean flux from the body (Leviticus 15), especially for a menstruant. The mikveh is also used to purify vessels (Numbers 31:22-23). Today the mikveh is used for the menstruant since the laws of ritual purity no longer apply due to the destruction of the Temple. A woman must immerse in the mikveh and purify herself following her menstruation in order to again participate in marital relations. It is also obligatory for proselytes to immerse as part of the ceremony for conversion. Many people still use the mikveh for spiritual purification and thus immerse in it on the eve of the Sabbath, festivals, and especially on the eve of the Day of Atonement. The mikveh serves to purify the spirit, not the body, as described by Maimonides. One has to have a mental intention to purify oneself by immersing in the mikveh.
According to Biblical law any collection of water whether drawn or collected naturally is suitable for a mikveh as long as one person can immerse himself, but the rabbis later stated that only water which has not been drawn, that is not collected in a vessel or recepticle, could be used. The rabbis also established a minimum for the amount of water to be used, that is the amount of water needed to fill a square cubit to the height of three cubits. This is between 250-1,000 liters depending on various calculations. If it contains at least this much undrawn water, any amount of drawn water can be added to it. A whole talmudic tractate Mikva’ot. is devoted to mikvehs and how they are to be constructed.
A mikveh cannot be prefabricated and just installed on a site since this makes it a vessel and constitutes water that has been drawn or collected. It may be built anywhere and out of any material that is water-tight. No water may leak from it, and it must contain the minimun of forty se’ah (250-1,000 liters) of valid, undrawn, water. Originally its height had to be one-hundred and twenty centimeters so one could stand and be totally immersed (even if bending was required). Later it was established that any height was valid if a person could be immersed laying down provided the minimum quantity of water was there.
All natural spring water provided it was not discolored by any admixtures is valid. Rain water or melted snow or ice is ideal for the mikveh provided that it flows unstopped into the mikveh. Pipes may be used to carry this water provided they touch the ground and are thus not considered vessels. A mikveh must be emptied by any means, even a pump, from above. No drain in the bottom is permitted as it makes the mikveh a vessel and subject to leakage. As long as the mikveh has contained at least forty se’ah of valid water, all water added to it, even drawn water is valid.
David Kotlar and Editorial Staff, E. J., v. 11, pp. 1534-44.
A prayer is normally recited after the immersion called al ha-tevilah, “Blessed art Thou, O Lord, our God, King of the Universe, who hast sanctified us by His commandments, and commanded us concerning the immersion”.) and accept lashes³¹Lashes and Malkkut Ar’ba’im, מלקות ארבעים, forty lashes is also known as flogging which is a Biblical form of punishment. When no other form of punishment was specifically prescribed, flogging became the standard form of punishment (Deuteronomy 25:2). Flogging was the only punishment in the Bible used as a general rule and not in relation to any particular offence except for the slandering of a virgin where the lashes as well as a fine were prescribed (Deuteronomy 22:18).
The maximum number of stripes to be administered in any one case are forty (Deuteronomy 25:3) for any further flogging the Bible stated, would degrade your brother in your eyes (Deuteronomy 25:3). The intent of the Bible seems to be that forty is the maximum number of stripes allowed, but that each offense and its seriousness could determine the number of stripes from one to forty provided the maximum number was not exceeded.
Talmudical law detailed how the Biblical punishment of flogging was to be administered. All the laws are found in the Talmudic tractate Makkot, מכות. The rabbis altered the Biblical law of flogging reducing the number of the maximum number of stripes to ever be received from forty to thirty-nine (Mak. 22a) so as to avoid the danger that the flogger accidentally might exceed the number of forty lashes. If he were permitted to administer forty lashes, the flogger might have given an extra one before he could have been stopped thus administering forty-one lashes which exceeds the maximum number of lashes allowed by the Bible and disgracing the man in the eyes of his brothers and thus also would the flogger be made subject to flogging for his transgression. Therefore the rabbis ruled that the maximum number of stripes they would allow was thirty-nine, for even if the flogger made a mistake he could be stopped before he exceeded the maximum number of forty stripes even if he gave an extra one as he was being stopped. (This is the reason for the comment by Isserles to this law given by Caro, see footnote 55).
The rabbis carefully defined all the offenses for which flogging would serve as a punishment. The number thirty-nine became the maximum number of stripes for offenses for which flogging was administered. The rabbis though, were careful not to cause death by flogging which would have exceeded the Biblical law. Therefore all people to be flogged were first examined to see if they could physically withstand the punishment. The examiner would then determine the safe number of stripes to be inflicted (Mak. 3:11). Flogging would be stopped if it appeared during the stripes that the man could not take anymore (Mak. 17:5). Flogging could also be postponed a day until a person would be fit to under-go the punishment (Mak. 17:3).
Floggings were administered with a whip made of calfskin to the bare upper body of the offender. One-third of the lashes were given on the breast and the other two-thirds on the back. The one being flogged would stand in a bowed position and the flogger would stand on a stone above him. As the stripes were being given admonitory and consolatory verses from the Bible would be recited (Mak. 3:12-14). If death did result and the flogging had been conducted according to the law, the flogger was not liable. If though, he had not faithfully followed the law, he had to flee to a city of refuge which was the case in any accidental homocide.
Flogging for disciplinary reasons as well as for punishment for other than transgressing actively a prohibition of the Torah was also prescribed by the rabbis and this was usually done in a public place so as to be a deterrent to others to violate laws. Usually disciplinary stripes were given in lesser numbers (that is less than thirty-nine) and were not administered to the bare upper body nor were they given with a leather whip. As time passed, people were more often allowed to pay fines rather than be whipped and whipping all but replaced capital punishment in Israel.
On Yom Kippur a custom arose that after the Minḥah Afternoon Service, forty stripes (according to Caro, but only thirty-nine in Ashkenazi communities as pointed out by Isserles) were administered while the victim repeated the confession, viddui (see footnote 39). The one who administered the flogging was to say “And He (God) pities and will atone sins”, (Psalms 78:38). The purpose of this custom was to increase one’s awareness of his need for confession to atone for his sins. This was a visual and physical admission of sins and it was believed to help one receive complete atonement.
Haim Hermann Cohn, E. J., v. 6, pp. 1348-51; Moshe David Herr, E. J., v. 5, p. 1381. (to effect atonement) whenever desired provided that it is before nightfall, but one does not bless over the immersion.
Hagah: One needs to immerse one time without a confession because of pollution (urinary emmission). The same holds true if one pours nine kavs³²A kav, was a unit of measurement for a liquid. According to present day standards a kav is approximately equivalent to 1.2 liters. of water (upon himself), (if the immersion pains him, (מגן אברהם),³³Magen Avraham, מגן אברהם, is a seventeenth century commentary on the Shulḥan Arukh, Oraḥ Ḥayyim which was first printed in Dyhernfurth in 1692. It was highly accepted in Poland and Germany where it became the model for halakhic decisions by the scholars of that country who often differed from other codifiers. The Magen Avraham was written by Abraham Abele ben Ḥayyim ha-Levi Gombiner who lived from 1637 until 1683. He was of Polish birth but he moved to Lithuania after the death of his parents in Chmielnicki Massacres in 1648. After studying there with his relative Jacob Isaac Gombiner he moved to Kalisz where he was appointed head of the yeshivah and dayyan, judge, of the bet din rabbinical court.
Abraham’s commentary is evidence of his vast knowledge of halakhic material. The goal of his work, Magen Avraham was to provide a compromise between the decisions of Joseph Caro and the glosses of Moses Isserles. When no compromise could be arrived at Abraham usually sided with his fellow Ashkenazi, Isserles. Abraham felt that all Jewish customs were valid and sacred and he attempted to justify them even when there was a disagreement among the codifiers. Abraham highly regarded the Zohar and Kabbalists and he occasionally accepted their opinions over that of the codifiers.
Gombiner was also the author of a commentary on the Yalkut Shimoni called Zayit Ra’anan and a collection of homilies on Genesis called Shemen Sason in addition to a short commentary of the Tosefta of Nezikim.
Shmuel Ashkenazi, E. J., v. 7, pp. 766-67.), this is also effective, (מהרי״ו וכל בו ותשב״צ).³⁴Mahariv and Kol Bo and Tashbaẓ, מהרי״ו וכל בו ותשב״ץ.
Mahariv, מהרי״ו, see footnote 27.
Kol Bo, כל בו, which when translated means “everything within” is an anonymous work which contained both halakhic decisions and explanations of halakhot arranged according to subject matter. The book, Kol Bo, was written either at the end of the thirteenth century or at the beginning of the fourteenth century. The work is very similar to a commentary on Oraḥ Ḥayyim called Orḥot Ḥayyim written by Aaron b. Jacob ha-Kohen of Lunel and published in Florence in 1750-51. The fact that they were so similar and covered the same material except that the Orḥot Ḥayyim contained more material than did the Kol Bo caused some scholars to believe that the Kol Bo was a later abridgment to the Orḥot Ḥayyim. But this may not be true due to the differences in their arrangement, the Orḥot Ḥayyim being more systematic. There is another view that the Kol Bo was, the first edition to the Orḥot Ḥayyim and probably by the same author, Aaron b. Jacob ha-Kohen; the material in the Kol Bo certainly preceded that of the Orḥot Ḥayyim.
There are one-hundred and forty-eight sections to the Kol Bo which cover many subjects of Jewish ceremonial, ritual, civil, personal, and community life. The anthology includes collections of laws from numerous and varied halakhic works. The Kol Bo was basically patterned after the Mishneh Torah of Maimonides together with the additions of the scholars of Germany, France, and Provence. There were in addition a few rulings by Spanish scholars included. Many of the laws included in the Kol Bo are from books no longer in existence today. It is possible that the Kol Bo never had much original material, but was mainly an anthology of rules from various sources. The Kol Bo was first printed in Naples in 1490-91.
Shlomoh Zalman Havlin, E. J., v. 10, pp. 1159-60.
Tashbaẓ, תשב״ץ, see footnote 20. One who incurs a death between Rosh HaShanah and Yom Kippur, it is permissible to wash and to immerse on the Eve of Yom Kippur because Yom Kippur cancels the “shiva³⁵Shiva is a seven day mourning period which begins immediately after the funeral. The mourners traditionally gather in the house of the deceased where they sit on low stools or over-turned couches with their heads enrobed. This is obligatory for close relatives of the deceased, be it husband or wife, mother or father, son or daughter, or brother or sister. The mourners must perform keri’ah, a rending of their garments as a symbol of mourning and they are required to recite the blessing dayyan ha-emet proclaiming God as the true judge. During the shiva period, mourners are not permitted to work physically, conduct financial transactions, bathe, annoint the body, cut the hair, cohabit, wear leather shoes, wash clothes, greet acquaintances, and study the Torah. Study, though of sorrowful portions of the Bible and Talmud, such as Job, Lamentations, parts of Jeremiah and the laws of mourning is permitted.
The first meal of the mourners after the funeral is called se’udat havra’ah, the meal of consolation. This meal is provided by friends and neighbors for the mourners in accordance with the talmudic law that a mourner is forbidden to eat of his own bread on the first day of mourning (Mk. 27b). A mourner is also not permitted to put on teffilin, prayer phylacteries, on the first day of the Shiva period.
The first three days of this period are considered the most intense and are known as the three days for weeping the entire seven day period is known as a time of lamenting. The shiva period is suspended on the Sabbath and ends on a holiday even if the total period of seven days has not elapsed. (see also footnote 37).
Aaron Rothkoff, E. J., v. 12, pp. 488-89.”, (the seven day mourning period), (מהרי״ל, הלכות שמחות).³⁶Maharil, מהרי״ל, “The Laws of Mourning”, הלכות שמחות, (“שמחות”, “Pleasures” is a euphemism). The Laws of Mourning as discussed by Moellin; see footnote 8. Even though it is customary not to wash (bath) during the entire “sheloshim³⁷Sheloshim, means thirty and it refers to the thirty days of mourning after the death of a close relative; mother, father, wife, husband, son, daughter, brother, or sister, and it begins from the time of the burial. The mourner during the sheloshim is not to wear new or even festive clothes; not to shave or have a hair cut; not to participate in festivities including wedding, circumcision, or pidyon ha-ben (redemption of the first born male child) banquets unless it is one’s own child; not to marry; and to abstain from going to entertainment. It is also customary to change one’s usual seat in the synagogue during these thirty days. If the last day of sheloshim falls on the Sabbath then the mourning period ends prior to the Sabbath.
The three pilgrimage feativals and Rosh HaShanah may shorten the shiva or sheloshim period. If the mourner observes at least one hour of the shiva (see footnote 35) before Passover or Shavuot, the shiva is waived and the sheloshim is reduced to fifteen days after the holiday, but in the case of Succot the mourner has to observe only eight days of sheloshim after the festival. If a mourner observes at least one hour of shiva before Rosh HaShanah, the shiva is waived and the Day of Atonement ends the sheloshim. If a mourner observes at least one hour of shiva before Yom Kippur shiva is waived and Succot ends sheloshim. Minor festivals such as Ḥanukkah and Purim do not shorten the shiva or sheloshim. If a person only learns of a death within thirty days of the passing (shemu’ah kerovah) he must observe the complete rites of shiva and sheloshim. If the news reaches him more than thirty days after the death has occurred (shemua’ah reḥokah) then he must only observe the mourning rites of shiva and sheloshim for one hour. When one is mourning the death of one’s parents the prohibitions of the sheloshim period are observed for an entire twelve months along with the recitation of the mourner’s Kaddish (see footnote 177) for eleven months, (see Shulḥan Arukh, Yoreh De’ah, 399).”, (thirty day mourning period), a commanded immersion is permitted, (דעת עצמו).³⁸Da’at Aẓmo, דעת עצמו; this is the way indicated in Isserles’ glosses that the comment he was making was Isserles’ own opinion and was not taken from another source.

One may immerse (inaritual bath³⁰Mikveh, מקוה, is a pool or a bath of clear water. When a person immerses in it, it renders ritual cleanliness to one who has become ritually unclean through contact with the dead (Numbers 19) or any other defiling object, or through an unclean flux from the body (Leviticus 15), especially for a menstruant. The mikveh is also used to purify vessels (Numbers 31:22-23). Today the mikveh is used for the menstruant since the laws of ritual purity no longer apply due to the destruction of the Temple. A woman must immerse in the mikveh and purify herself following her menstruation in order to again participate in marital relations. It is also obligatory for proselytes to immerse as part of the ceremony for conversion. Many people still use the mikveh for spiritual purification and thus immerse in it on the eve of the Sabbath, festivals, and especially on the eve of the Day of Atonement. The mikveh serves to purify the spirit, not the body, as described by Maimonides. One has to have a mental intention to purify oneself by immersing in the mikveh.
According to Biblical law any collection of water whether drawn or collected naturally is suitable for a mikveh as long as one person can immerse himself, but the rabbis later stated that only water which has not been drawn, that is not collected in a vessel or recepticle, could be used. The rabbis also established a minimum for the amount of water to be used, that is the amount of water needed to fill a square cubit to the height of three cubits. This is between 250-1,000 liters depending on various calculations. If it contains at least this much undrawn water, any amount of drawn water can be added to it. A whole talmudic tractate Mikva’ot. is devoted to mikvehs and how they are to be constructed.
A mikveh cannot be prefabricated and just installed on a site since this makes it a vessel and constitutes water that has been drawn or collected. It may be built anywhere and out of any material that is water-tight. No water may leak from it, and it must contain the minimun of forty se’ah (250-1,000 liters) of valid, undrawn, water. Originally its height had to be one-hundred and twenty centimeters so one could stand and be totally immersed (even if bending was required). Later it was established that any height was valid if a person could be immersed laying down provided the minimum quantity of water was there.
All natural spring water provided it was not discolored by any admixtures is valid. Rain water or melted snow or ice is ideal for the mikveh provided that it flows unstopped into the mikveh. Pipes may be used to carry this water provided they touch the ground and are thus not considered vessels. A mikveh must be emptied by any means, even a pump, from above. No drain in the bottom is permitted as it makes the mikveh a vessel and subject to leakage. As long as the mikveh has contained at least forty se’ah of valid water, all water added to it, even drawn water is valid.
David Kotlar and Editorial Staff, E. J., v. 11, pp. 1534-44.
A prayer is normally recited after the immersion called al ha-tevilah, “Blessed art Thou, O Lord, our God, King of the Universe, who hast sanctified us by His commandments, and commanded us concerning the immersion”.) and accept lashes³¹Lashes and Malkkut Ar’ba’im, מלקות ארבעים, forty lashes is also known as flogging which is a Biblical form of punishment. When no other form of punishment was specifically prescribed, flogging became the standard form of punishment (Deuteronomy 25:2). Flogging was the only punishment in the Bible used as a general rule and not in relation to any particular offence except for the slandering of a virgin where the lashes as well as a fine were prescribed (Deuteronomy 22:18).
The maximum number of stripes to be administered in any one case are forty (Deuteronomy 25:3) for any further flogging the Bible stated, would degrade your brother in your eyes (Deuteronomy 25:3). The intent of the Bible seems to be that forty is the maximum number of stripes allowed, but that each offense and its seriousness could determine the number of stripes from one to forty provided the maximum number was not exceeded.
Talmudical law detailed how the Biblical punishment of flogging was to be administered. All the laws are found in the Talmudic tractate Makkot, מכות. The rabbis altered the Biblical law of flogging reducing the number of the maximum number of stripes to ever be received from forty to thirty-nine (Mak. 22a) so as to avoid the danger that the flogger accidentally might exceed the number of forty lashes. If he were permitted to administer forty lashes, the flogger might have given an extra one before he could have been stopped thus administering forty-one lashes which exceeds the maximum number of lashes allowed by the Bible and disgracing the man in the eyes of his brothers and thus also would the flogger be made subject to flogging for his transgression. Therefore the rabbis ruled that the maximum number of stripes they would allow was thirty-nine, for even if the flogger made a mistake he could be stopped before he exceeded the maximum number of forty stripes even if he gave an extra one as he was being stopped. (This is the reason for the comment by Isserles to this law given by Caro, see footnote 55).
The rabbis carefully defined all the offenses for which flogging would serve as a punishment. The number thirty-nine became the maximum number of stripes for offenses for which flogging was administered. The rabbis though, were careful not to cause death by flogging which would have exceeded the Biblical law. Therefore all people to be flogged were first examined to see if they could physically withstand the punishment. The examiner would then determine the safe number of stripes to be inflicted (Mak. 3:11). Flogging would be stopped if it appeared during the stripes that the man could not take anymore (Mak. 17:5). Flogging could also be postponed a day until a person would be fit to under-go the punishment (Mak. 17:3).
Floggings were administered with a whip made of calfskin to the bare upper body of the offender. One-third of the lashes were given on the breast and the other two-thirds on the back. The one being flogged would stand in a bowed position and the flogger would stand on a stone above him. As the stripes were being given admonitory and consolatory verses from the Bible would be recited (Mak. 3:12-14). If death did result and the flogging had been conducted according to the law, the flogger was not liable. If though, he had not faithfully followed the law, he had to flee to a city of refuge which was the case in any accidental homocide.
Flogging for disciplinary reasons as well as for punishment for other than transgressing actively a prohibition of the Torah was also prescribed by the rabbis and this was usually done in a public place so as to be a deterrent to others to violate laws. Usually disciplinary stripes were given in lesser numbers (that is less than thirty-nine) and were not administered to the bare upper body nor were they given with a leather whip. As time passed, people were more often allowed to pay fines rather than be whipped and whipping all but replaced capital punishment in Israel.
On Yom Kippur a custom arose that after the Minḥah Afternoon Service, forty stripes (according to Caro, but only thirty-nine in Ashkenazi communities as pointed out by Isserles) were administered while the victim repeated the confession, viddui (see footnote 39). The one who administered the flogging was to say “And He (God) pities and will atone sins”, (Psalms 78:38). The purpose of this custom was to increase one’s awareness of his need for confession to atone for his sins. This was a visual and physical admission of sins and it was believed to help one receive complete atonement.
Haim Hermann Cohn, E. J., v. 6, pp. 1348-51; Moshe David Herr, E. J., v. 5, p. 1381. (to effect atonement) whenever desired provided that it is before nightfall, but one does not bless over the immersion.
Hagah: One needs to immerse one time without a confession because of pollution (urinary emmission). The same holds true if one pours nine kavs³²A kav, was a unit of measurement for a liquid. According to present day standards a kav is approximately equivalent to 1.2 liters. of water (upon himself), (if the immersion pains him, (מגן אברהם),³³Magen Avraham, מגן אברהם, is a seventeenth century commentary on the Shulḥan Arukh, Oraḥ Ḥayyim which was first printed in Dyhernfurth in 1692. It was highly accepted in Poland and Germany where it became the model for halakhic decisions by the scholars of that country who often differed from other codifiers. The Magen Avraham was written by Abraham Abele ben Ḥayyim ha-Levi Gombiner who lived from 1637 until 1683. He was of Polish birth but he moved to Lithuania after the death of his parents in Chmielnicki Massacres in 1648. After studying there with his relative Jacob Isaac Gombiner he moved to Kalisz where he was appointed head of the yeshivah and dayyan, judge, of the bet din rabbinical court.
Abraham’s commentary is evidence of his vast knowledge of halakhic material. The goal of his work, Magen Avraham was to provide a compromise between the decisions of Joseph Caro and the glosses of Moses Isserles. When no compromise could be arrived at Abraham usually sided with his fellow Ashkenazi, Isserles. Abraham felt that all Jewish customs were valid and sacred and he attempted to justify them even when there was a disagreement among the codifiers. Abraham highly regarded the Zohar and Kabbalists and he occasionally accepted their opinions over that of the codifiers.
Gombiner was also the author of a commentary on the Yalkut Shimoni called Zayit Ra’anan and a collection of homilies on Genesis called Shemen Sason in addition to a short commentary of the Tosefta of Nezikim.
Shmuel Ashkenazi, E. J., v. 7, pp. 766-67.), this is also effective, (מהרי״ו וכל בו ותשב״צ).³⁴Mahariv and Kol Bo and Tashbaẓ, מהרי״ו וכל בו ותשב״ץ.
Mahariv, מהרי״ו, see footnote 27.
Kol Bo, כל בו, which when translated means “everything within” is an anonymous work which contained both halakhic decisions and explanations of halakhot arranged according to subject matter. The book, Kol Bo, was written either at the end of the thirteenth century or at the beginning of the fourteenth century. The work is very similar to a commentary on Oraḥ Ḥayyim called Orḥot Ḥayyim written by Aaron b. Jacob ha-Kohen of Lunel and published in Florence in 1750-51. The fact that they were so similar and covered the same material except that the Orḥot Ḥayyim contained more material than did the Kol Bo caused some scholars to believe that the Kol Bo was a later abridgment to the Orḥot Ḥayyim. But this may not be true due to the differences in their arrangement, the Orḥot Ḥayyim being more systematic. There is another view that the Kol Bo was, the first edition to the Orḥot Ḥayyim and probably by the same author, Aaron b. Jacob ha-Kohen; the material in the Kol Bo certainly preceded that of the Orḥot Ḥayyim.
There are one-hundred and forty-eight sections to the Kol Bo which cover many subjects of Jewish ceremonial, ritual, civil, personal, and community life. The anthology includes collections of laws from numerous and varied halakhic works. The Kol Bo was basically patterned after the Mishneh Torah of Maimonides together with the additions of the scholars of Germany, France, and Provence. There were in addition a few rulings by Spanish scholars included. Many of the laws included in the Kol Bo are from books no longer in existence today. It is possible that the Kol Bo never had much original material, but was mainly an anthology of rules from various sources. The Kol Bo was first printed in Naples in 1490-91.
Shlomoh Zalman Havlin, E. J., v. 10, pp. 1159-60.
Tashbaẓ, תשב״ץ, see footnote 20. One who incurs a death between Rosh HaShanah and Yom Kippur, it is permissible to wash and to immerse on the Eve of Yom Kippur because Yom Kippur cancels the “shiva³⁵Shiva is a seven day mourning period which begins immediately after the funeral. The mourners traditionally gather in the house of the deceased where they sit on low stools or over-turned couches with their heads enrobed. This is obligatory for close relatives of the deceased, be it husband or wife, mother or father, son or daughter, or brother or sister. The mourners must perform keri’ah, a rending of their garments as a symbol of mourning and they are required to recite the blessing dayyan ha-emet proclaiming God as the true judge. During the shiva period, mourners are not permitted to work physically, conduct financial transactions, bathe, annoint the body, cut the hair, cohabit, wear leather shoes, wash clothes, greet acquaintances, and study the Torah. Study, though of sorrowful portions of the Bible and Talmud, such as Job, Lamentations, parts of Jeremiah and the laws of mourning is permitted.
The first meal of the mourners after the funeral is called se’udat havra’ah, the meal of consolation. This meal is provided by friends and neighbors for the mourners in accordance with the talmudic law that a mourner is forbidden to eat of his own bread on the first day of mourning (Mk. 27b). A mourner is also not permitted to put on teffilin, prayer phylacteries, on the first day of the Shiva period.
The first three days of this period are considered the most intense and are known as the three days for weeping the entire seven day period is known as a time of lamenting. The shiva period is suspended on the Sabbath and ends on a holiday even if the total period of seven days has not elapsed. (see also footnote 37).
Aaron Rothkoff, E. J., v. 12, pp. 488-89.”, (the seven day mourning period), (מהרי״ל, הלכות שמחות).³⁶Maharil, מהרי״ל, “The Laws of Mourning”, הלכות שמחות, (“שמחות”, “Pleasures” is a euphemism). The Laws of Mourning as discussed by Moellin; see footnote 8. Even though it is customary not to wash (bath) during the entire “sheloshim³⁷Sheloshim, means thirty and it refers to the thirty days of mourning after the death of a close relative; mother, father, wife, husband, son, daughter, brother, or sister, and it begins from the time of the burial. The mourner during the sheloshim is not to wear new or even festive clothes; not to shave or have a hair cut; not to participate in festivities including wedding, circumcision, or pidyon ha-ben (redemption of the first born male child) banquets unless it is one’s own child; not to marry; and to abstain from going to entertainment. It is also customary to change one’s usual seat in the synagogue during these thirty days. If the last day of sheloshim falls on the Sabbath then the mourning period ends prior to the Sabbath.
The three pilgrimage feativals and Rosh HaShanah may shorten the shiva or sheloshim period. If the mourner observes at least one hour of the shiva (see footnote 35) before Passover or Shavuot, the shiva is waived and the sheloshim is reduced to fifteen days after the holiday, but in the case of Succot the mourner has to observe only eight days of sheloshim after the festival. If a mourner observes at least one hour of shiva before Rosh HaShanah, the shiva is waived and the Day of Atonement ends the sheloshim. If a mourner observes at least one hour of shiva before Yom Kippur shiva is waived and Succot ends sheloshim. Minor festivals such as Ḥanukkah and Purim do not shorten the shiva or sheloshim. If a person only learns of a death within thirty days of the passing (shemu’ah kerovah) he must observe the complete rites of shiva and sheloshim. If the news reaches him more than thirty days after the death has occurred (shemua’ah reḥokah) then he must only observe the mourning rites of shiva and sheloshim for one hour. When one is mourning the death of one’s parents the prohibitions of the sheloshim period are observed for an entire twelve months along with the recitation of the mourner’s Kaddish (see footnote 177) for eleven months, (see Shulḥan Arukh, Yoreh De’ah, 399).”, (thirty day mourning period), a commanded immersion is permitted, (דעת עצמו).³⁸Da’at Aẓmo, דעת עצמו; this is the way indicated in Isserles’ glosses that the comment he was making was Isserles’ own opinion and was not taken from another source.

2. On the second Sabbath we take out two [Torah] scrolls — in one [the Reader] reads the weekly portion, and in the second he reads "Remember what Amalek did to you..." [Deuteronomy 25:17–19], and the haftarah is "I took account of what Amalek did to you..." [I Samuel 15:1–34].

17. It is a custom of all Jews that the reader reads and spreads out [the Megillah] like a letter in order to make the miracle seen. And when one finishes, one goes back and wraps it all up and makes a blessing. RAMA: There is what is written that we say four verses of redemption in a loud voice, [the verses are] "A Jewish Man", "And Mordechai went out", "The Jews had light", "Because Mordechai the Jew" and such is the custom in our lands. [Hagahos Maimoni; Kol Bo; Avudraham]. And then the reader goes back and reads these verses. It is also written that the young children are accustomed to draw pictures of Haman on trees or stones or to write the name of Haman on themselves and to strike one against the other in order to blot out his name according to "The name of Amalek shall surely be erased" (Devarim 25:19) and "But the fame of the wicked rots". (Proverbs 10:7). From this is derived the custom that we strike Haman wen we read the Megillah in the synagogue [Avudraham]. We must not nullify any custom nor should we ridicule [any custom] because "לא לחנם הוקבע". [Beis Yosef]