Halakhah su Esodo 23:5

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.

Nevertheless, it does not necessarily follow that a general obligation to be kind to animals or, minimally, a duty to refrain from cruelty to animals, can be inferred from any of these biblical regulations or even from all of them collectively. These regulations have been understood by some Sages of the Talmud as establishing particular duties, not as expressions of a more general duty. Nor is it demonstrably certain that even these limited and particular duties are designed primarily for the purpose of promoting the welfare of animals. Even with regard to the particular duty concerning removing the burden borne by a beast, the commandment does not necessarily reflect concern for the welfare of the animal. The obligation to release the ass from its burden (Exodus 23:5), i.e., to assist the owner in unloading merchandise or materials carried by a beast of burden, and the similar obligation to come to the assistance of a fallen animal (Deuteronomy 22:4) are understood by many classical commentators as duties rooted in a concern for the financial loss which would be suffered by the animal's master were the animal to collapse under the weight of the burden. Thus, in formulating the rationale underlying this commandment, R. Aaron ha-Levi of Barcelona, Sefer ha-Hinnukh, no. 80, declares:

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

The commandment of removing a burden: To remove a burden from upon the donkey that is weary from its burden upon the way, as it is stated (Exodus 23:5), "If you see the donkey of your enemy, etc." - and the understanding of this enemy, is [another Jew]. And even though it is written (Leviticus 19:17), "Do not hate your brother in your heart," which [refers to a Jew] - the Sages said (Pesachim 113b) that this matter is for example that he saw him commit a sin privately, and he warned [the one sinning] but he did not yield, such that he is [then] permitted to hate him. And that which it states, "donkey," is not specifically a donkey, but rather that the Scripture expressed that which is common - as donkeys are [used for carrying] a burden. And it is written, "you must certainly relieve with him" - meaning to say, help him, from the usage (Nehemiah 3:8), "and they relieved Jerusalem," which is an expression of strengthening.

That He prohibited us from forsaking someone forlorn with a load stuck on the road. Rather we must help him, and unload it from him, until it is set for him to carry it; or raise up his load together with him - whether on his back or on his animal - as it is explained in Mishneh Torah (Deuteronomy). And that is His saying, "and would forbear to unload it" (Exodus 23:5). And the language of the Mekhilta (Mekhilta d'Rabbi Yishmael 23:5:1) is, "'And would forbear to unload it; you shall surely unload it with him' - we have found to learn that he transgresses a positive and a negative commandment." And a separate negative commandment also appears about this content. And that is His saying, "Do not observe your brother’s donkey" (Deuteronomy 22:4). And in the Sifrei (Sifrei Devarim 225:1): "'Do not observe' - that is a negative commandment. And earlier, it says, 'When you see' - that is a positive commandment." And the regulations of this commandment have already been explained in the second [chapter] of [Bava] Metzia. (See Parashat Mishpatim; Mishneh Torah, Murderer and the Preservation of Life 13.)

To not leave the hatred towards the seducer: That the hatred of the seducer be fixed in our hearts, meaning to say that we not lighten in the grudge of vengeance upon him for all of the evil that he thought to do. And about this is it stated (Deuteronomy 13:9), "and you shall not listen to him" - meaning to say, do not be amenable to him to remove the grudge of vengeance upon him from your heart. And so did they, may their memory be blessed, say in explanation of this verse (Sifrei Devarim 89:2), "Since it is stated (Exodus 23:5), 'unload shall you unload with him'" - and Onkelos translated, "unload shall you unload what is in your heart against him," - "it is possible that you should unload for this one, too; [hence] we learn to say, 'and you shall not listen to him.'"