Halakhah su Esodo 23:78

It is forbidden to accept lashon hara according to the Torah, both in things "between man and his Maker" and things "between man and his neighbor." That is, we may not believe in our hearts that what is said is true. For, if we do, we will look down upon the one spoken of. And [this applies] even if he [the hearer] explicitly disagrees with what is said. For if not, he doubles the sin — speaking [(by being an accessory to the speaker)] and accepting. And the accepter transgresses (Shemoth 23:1): "You shall not bear a false report," concerning which Chazal have said in the Mechilta, that this is an exhortation against accepting lashon hara, aside from the other negative commandments and positive commandments adjoined to this, as we have written in the introduction. And Chazal have said (Pesachim 118a) that all who accept lashon hara deserve to be cast to the dogs, it being written "You shall not bear a false report," preceded by (Ibid 22:30): "To the dog shall you cast it." And they have also said (Rambam, Hilchoth Deoth 7:13): "The punishment of the accepter is grater than that of the teller."

Just as it is forbidden to accept lashon hara, according to the Torah, so is it forbidden to accept rechiluth according to the Torah, it, too, being in the category of lashon hara. That is, he must not believe in his heart that what was told him about Ploni's having done to him or said about him is true. And the accepter transgresses (Shemoth 23:1): "You shall not bear a false report," aside from the other negative and positive commandments that 104 are adjoined to this, as explained above in the introduction. And Chazal have said (Arachin 15b): "Lashon hara kills three: the speaker, the accepter, and the one it was said about" (as we know from the episode of Doeg, who was banished from the world to come because of [speaking] rechiluth; and Nov the city of Cohanim was wiped out because of the rechiluth spoken about them; and Saul was killed thereafter because of having accepted the rechiluth). And the accepter is worse than the speaker. And Chazal have said (Pesachim 118a) that if one speaks lashon hara or accepts lashon hara, he is fit to be cast to the dogs, it being written: "You shall not bear a false report," preceded by: "To the dog shall you cast it."

With this the discussion there (Bava Batra.24b) is explained. Rava stated, we can make three conclusions from R. Hiyya's teaching: 1) in cases of majority (rov) conflicting with proximity (karov), we rule according to the majority. 2) Majority (rov) is a Biblical rule. 3) We follow the ruling of R. Zera ⁹R. Zera's ruling is discussed in the gemara on BB 24a.. The talmud asks, but wasn't Rava the one who said that (the case of blood found in the corridor) was a case of majority and prevalent, with which no one argues (that the combination is more potent than proximity)? The talmud answers, Rava retracted from that statement (and concludes that even majority alone, without prevalent, is more potent than proximity). Tosafot there (Tosafot on Bava Batra 24a:5, lead words Ruba d'oraita) regarding "majority" is a Biblical rule, this refers to a majority which is not in front of us ¹⁰"Ruba d'leta kaman" is most easily explained as a majority which is not actually counted, but is assumed as common knowledge. In this case, as explained by the author in paragraph 5 below, the fact that bleeding occurs more commonly from the uterus than the "attic" is an assumed majority rather than a counted majority. In some places, this seems to be described as a form of chazaka, a strong assumption. For with respect to a majority which is in front of us ¹¹"Ruba d'ita kaman", a majority which is actually counted, e.g. 36 out of 71 judges in the Great Sanhedrin, or 9 out of 10 butcher shops selling kosher meat. we have no need (of proof from R. Hiyya), for it is an explicit verse, "you shall favor the majority" (Exodus.23.2) ¹²This is a more literal translation. The Koren and JPS translations are modified to follow one of the rabbinic interpretations, but our author is using the literal translation to support his argument.. It is possible to ask how is it proven from R. Hiyya regarding a majority that is not in front of us, since the blood of the uterus is (obviously) more copious than the blood of the attic, and this would definitely be considered a majority that is in front of us?

One should not engage in conversation after the cup of blessing, and one should not say the blessing over a “cup of tribulations.” What is a “cup of tribulations”? A second cup. The reason for this is that pairs are bad luck. As they taught in a baraita, “Whoever drinks double – that is, a pair of cups – should not say the blessing, because of the verse “Be proper to meet your God, O Israel.”³²³Am 4:12: “Prepare to meet your God, O Israel!” (JSB), but this midrashic use of the verse picks up on the connotation of nakhon – being proper or correct – from the root of the imperative verb hikon “prepare.” And the reason for prohibiting pairs is because of witchcraft and beings composed of two who rule over anyone who eats and drinking something in pairs. And another reason to distance oneself from “twos” is that that are separated from the power of One, for pairs come from the power of “twos.” So in order to fix one’s heart on unity and distance oneself from dualistic faith, like what is alluded to in Scripture, “Do not mix with shonim,”³²⁴Pr 24:21: “Do not mix with dissenters” (JSB). However, R. Bahya is clearly playing on the connection between “shonim” – literally, “those who differ” and shnayim – “two. In other words, he reads the verse as, “Do not mix with dualists.” The Talmudic prohibitions on pairs probably had something to do with their Babylonian cultural context, i.e., the dualistic Zoroastrianism of the Sassanid Persian empire. those who believe in twos or more. Therefore they prohibited pairs even for things eaten and drunk, for it is appropriate for natural matters to be a sign and symbol of appropriate practices and beliefs,³²⁵Literally, “appropriate matters.” But some mss. of R. Bahya’s text read “intellectual and spiritual matters,” making his point clearer. in that you already knew that true beliefs thus require actions. And you see that in the story of Creation, it was not said, “that it was good” on the second day.³²⁶That expression ki tov, which appears after the descriptions of what was created on the other five days in Genesis 1, is conspicuously absent at the end of the account of day two. For we follow what they said in Genesis Rabbah, that on it dissent and Gehennah were created, and without a doubt, with things like these created on it, it is a dangerous day, on which it is prohibited to begin any work, as our rabbis z”l said, “One does not begin things on the second day, because whoever adds something to one, there’s no good in him [or it], and thus it was called yom sheni – “day two,” which is from the expression shinui – “change.” For in One there is no change, which is what is written: “For I am the Lord, I have not changed.”³²⁷Mal 3:6. But the second day was the beginning of change, and from then on, change in what was created is desirable, and on the rest of the days after it we have found basis for an accusation against all of them, e.g., on the third day God said, “Let the earth bring forth fruit trees,” but it actually brought forth only “trees bearing fruit.”³²⁸Gen 1:11,12. R. Bahya picks up on the slightly different phrasing: “fruit tree bearing fruit” (1:11) vs. “tree bearing, to imply that the earth did not do exactly as God commanded. Similarly on the fourth day the moon made an accusation saying, “It isn’t fair for two kings to use one crown.”³²⁹B. Hullin 60b. This is the midrash told there:
And God made the two great lights? but later it says: “the great light and the small light”! The moon said before the Holy One: Master of the world, is it possible for two kings to use one crown? God said to her: Go and diminish yourself! She said before God: Because I asked a good question, I should diminish myself? God said: Go and rule both in day and in night. She said: What advantage is that? A candle in the daylight is useless. God said: Go and let Israel count their days and years by you. She said: They use the daylight [of the sun] to count seasonal cycles as well…Seeing that she was not appeased, the Holy One said: Bring a (sacrificial) atonement for me that I diminished the moon! This is what R. Shimon ben Lakish said: What is different about the ram of the new moon that it is offered “for God” (And one ram of the flock for a sin offering for God…Numbers 28:14). Said the Holy One: This ram shall be an atonement for me that I diminished the moon. And likewise on the fifth day, God killed the male Leviathan,³³⁰Though in his commentary to the Torah on Gen 1:4, R. Bahya uses the version of this midrash found in b. Bava Batra 74b: God castrated the male Leviathan and killed the female Leviathan. For had they mated with one another, they would have destroyed the world. which can be interpreted as He hid the heavenly light. And likewise on the sixth day, Adam sinned and changed the will of Ha-Shem, and about this it is said, “altering his face, you sent him out.”³³¹Job 14:20, which R. Bahya interprets as “you (Adam)– changed God’s face, and so ‘made” Him (God) send you out of the Garden of Eden.” See how the second day is the cause behind all of this, because all of these things come from its power and follow it. To the extent it said “Prepare to meet your God, O Israel,”³³²Am 4:12. who is one, and it added “O Israel,” who is the one singular nation of the one God, as it is said, “And who is like Your people, one nation on earth,”³³³I Chr 17:21. you should prepare and direct yourself to meet the One. So you should not eat or drink things in pairs, so that you will not think dualistic things in your heart.

However, you could be roused and open the eyes of your heart to the way of the wisdom of Kabbalah, that blessings are not just the private individual’s need alone, that something in them meets a “need” of the One Above, as Scripture says, “And you shall eat and be full, and you shall bless the LORD your God.” This verse permits the heart to understand the secret of blessings, and you will not find in the whole Torah anywhere that the Holy One Blessed be He commands us to bless His name unless it is with “Amen.” And because of this David said, “I will bless Your name”³⁴⁵Ps 145:1.and likewise he said, “Thank Him, and bless His name,”³⁴⁶Ps 100:4. and many other sayings like this. Accordingly you need to comprehend that blessings aren’t for the private individual’s needs at all, and that they are not only an expression of thanks, but they are an expression of addition and increase, as in the connotation of “He will bless your bread and water.”³⁴⁷Ex 23:25. And understand this statement of the sages z”l, when that said at the end of the chapter “The one who receives” on the topic of the creditor:³⁴⁸B. Bava Metzia 114a:
Scripture says (Dt 24:13) “that he may sleep in his cloth and bless you,” thus excluding hekdesh, which needs no blessing. Does it not? But it is written, “And you shall eat and be full, and you shall bless the Lord your God.” (Dt 8:10) But Scripture says, “And it shall be accounted to you as righteousness [i.e., charity].” (Dt 24:13) Hence it [the law of returning] holds good only for him [the creditor] for whom the act of righteousness is necessary, thus excluding hekdesh [as a creditor], which does not require righteousness. “that he may sleep in his cloth and bless you,”³⁴⁹Dt 24:13. If you’ve taken a pledge of clothing from a poor person for a loan, you must not keep it overnight, but rather, “when the sun goes down, you shall restore to him the pledge that he may sleep in his cloak and bless you; it will be an act of righteousness – tzedakah – before the Lord your God.”someone who needs a blessing, namely, a private individual, but if it is hekdesh, it doesn’t need a blessing,³⁵⁰That is, if the person pledges something that is hekdesh – property consecrated for use in the Temple for which no blessing is required, hence it must be an exception to Dt. 24:13, which specifies a blessing. “it would be an act of righteousness,” to the One to whom all acts of righteousness already belong. The sages z”l explained this with the interpretation that hekdesh requires a blessing, but does not require tzedakah. And they made this even clearer in tractate Berakhot, “R. Ishmael said to him, ‘Bless me, my son,’”³⁵¹B. Berakhot 7a. and in tractate Shabbat, “The Holy One Blessed be He said to Moses, ‘You could have helped Me,’”³⁵²B. Shabbat 89a. – this deals with the matter of blessings.³⁵³In each of the these examples, someone like “the man who has everything” asks for something from someone clearly his inferior, with a lot less of his own to give. And they also said that the Holy One Blessed be He desires the prayer of the righteous who are much smaller in number than the rest of the large nations, even though they are not “a numerous people, the glory of a king.”³⁵⁴Pr 14:28. But rather, certainly the expression “you shall bless” is an expression of addition and increase, and it connotes a brekhah – a “pool” gushing from its source, and thus we mention in our prayer titromam and titbarakh – “you shall be exalted and be blessed,”³⁵⁵In the blessing Yotzer Or in Shahrit. and in the language of the Kaddish – yitbarakh va-yishtabah, va-yitpa’ar, va-yitromam, vayitnasay. And it also has the connotation of berekhah – “kneeling” and bowing down, to He to whom every knee (berekh) must bend. And so you will find in the Book of Bahir, “What is the meaning of berakhah? It is the “tongue” of the “knee” – berekh, as it said, ‘and to You every knee must bend and every tongue give homage’³⁵⁶Is 45:23.– the One to whom every knee bows down.”³⁵⁷Sefer Ha-Bahir, Ot 9. Behold, this is among the mysteries of the Torah, and the whole issue of kavvanah – “intention”- in prayer follows it, but it is not right to explain and expand upon this further in writing.

We find that the light of the sun and of all the stars is eternal, of itself it does not increase nor decrease. However, the light appears to increase or decrease depending on whether the object being viewed is far or near. Also, the light varies due to changes in the atmosphere at the beginning or the middle of the day. Only the moon has a renewal of its light.¹ Ibn Ezra believes that the sun, all planets and all stars, generate their own light, and only the moon reflects light of another body (the sun). Therefore, the Hebrew term for month, “hodesh,” can truly apply only to a lunar month.² In Hebrew, a month is called “hodesh,” which is derived from the root “hidesh” meaning “renew.” Since only the moon has a renewal of its light, “hodesh” can only refer to a lunar month. We examine when such a month begins.

Therefore, they used to come to Him three times a year for the pilgrimage festivals: Passover, Shavuot, and Sukkot – on the holiday of Passover because it is the month of Aviv, the time for the barley harvest; on the holiday of Shavuot because it is the time for the wheat harvest, and on the holiday of Sukkot because it is the time of gathering when all the fruits were gathered into the home. And this is why it is written, “[three time a year all your males shall see] the face of the lord YHWH, the God of Israel,”⁷⁵Ex 34:23. and it is written, “none shall see My face,”⁷⁶Ex 23:15. that is to say, without a sacrifice, because they would need to bring in any case the olah and shlemim offerings, and through this the world would be blessed with its meals and sustenance from the flow of blessing from the source to the well, and from the well to the garden, and from the garden to the four rivers of the garden of Eden of the lower world, whose inhabitants are blessed from there throughout the four corners of the world. So you find yourself learning that when a person stands over his table and eats with this thought in mind, see! This eating is indeed physical and a natural activity, but see! It also revolves into a higher, intellectual form of worship, and this is the reason why it is written, ‘In all your ways know Him,’⁷⁷Prov 3:6. as I discussed above. And if so, you see how one’s eating is thought to be a perfect act of worship like one of the forms of divine service [i.e., the sacrifices], and the like quintessential commandment of all the commandments. And this is the point of having the right intention at a meal at the table – that the body be nourished by it and take its bodily portion from the bodily eating, and the soul by this act of thought is filled, fed, and satisfied as if from the choicest parts of “real eating” of the ways of Ha-Shem and His pleasantness, and regarding this it is said, ‘Your table is laid out with rich food.’⁷⁸Job 36:16.

When the Jews are in control (Yad Yisrael Tekifah), it is forbidden for us to permit Nochrim to reside amongst us. Even if he is only a temporary resident or an iterant merchant, he cannot pass through our land unless he accepts the seven Noahide laws as the Torah (Shemot 23:33) states, “They shall not dwell in your land.” If he accepts the seven Noahide laws, he is classified as a Ger Toshav (a Nochri who is permitted to reside in our land). However, we do not accept a Ger Toshav at a time (such as nowadays) when the Yoveil (Jubilee) laws do not apply. When the laws of Yoveil do not apply, we accept only a Ger Tzedek (a full-fledged convert).

2) And the speaker or the receiver [of lashon hara] also transgresses (Shemoth 23:1): "Do not receive [tissa] a false report," which can also be read as: "Do not spread [tassi] a false report," so that this negative commandment includes both [the speaker and the receiver].

That it is inappropriate to count commands that include the whole Torah.

Behold that there are commands and warnings that appear in the Torah that are not about a specific thing, but rather include all of the commandments. It is as if it says, "Do everything I have commanded you to do and be careful about anything from which I have prohibited you"; or "Do not transgress anything of what I have commanded you about." And there is no room to count this command on its own - as it does not command us to do a specific act, such that it should be a positive commandment; nor does it warn us from doing a specific act, such that it should be a negative commandment. And this is like its saying, "Be on guard concerning all that I have told you" (Exodus 23:13); and what is stated, "And you shall keep my statutes" (Leviticus 19:19); "And you shall keep my judgements" (Leviticus 18:4); "and you shall keep My covenant" (Exodus 19:5); "And you shall keep My charge" (Leviticus 18:30), and many like these. And [others] have already erred in this principle, such that they counted, "You shall be holy" (Leviticus 19:2), to be included among the positive commandments. And they did not know that "You shall be holy," and "you shall sanctify yourselves and be holy" (Leviticus 11:44) are commands to keep the whole Torah. It is as if it said, "Be holy by doing everything I have commanded you and being careful about anything I have prohibited to you." And the words of the Sifra (Sifra, Kedoshim, Section 1:1) are, "'You shall be holy' - you shall be separated - meaning to say, separate from all the disgraceful things that I have prohibited to you." And in the Mekhilta (Mekhilta d'Rabbi Yishmael 22:30:1), "Issi ben Yehudah says, 'When the Holy One, Blessed be He, originates a commandment for Israel, He adds holiness to them'" - meaning to say this command is not a command in itself, but rather follows from the commands that they have been commanded. So one who fulfills this command will be called, holy. And there is no difference between it saying, "You shall be holy," or if it had said, "Do my commandments." Would you see that that which is being said [here] is a positive commandment, in addition to the commandments that it is referring back to, that we have been commanded? Likewise should we not say that "You shall be holy," and that which is similar to it, is a commandment - for it has not commanded us to do anything besides what we [already] know. And the words of the Sifrei (Sifrei Bamidbar 115:1): "'You shall be holy' - that is the holiness of the commandments.' Hence behold what we have been working around is clear. And also based on this principle is its saying, "Cut away the thickening about your hearts" (Deuteronomy 10:16) - meaning to say, that one accept and obey all of the commandments already mentioned. And so too, "and stiffen your necks no more" (Deuteronomy 10:16) - meaning to say, do not harden your heart and accept that which I commanded you, and do not transgress it.

The Rishonim disagree about whether there is a Torah commandment to pray every day. According to Rambam (Sefer Ha-mitzvot, mitzva 5), there is a biblical commandment to pray daily, as the Torah states (Shemot 23:25), “Serve God your Lord,” and (Devarim 6:13) “Revere the Lord your God and serve Him.” Although these verses contain a general commandment to serve God, they also include a specific commandment to pray. The Sages interpreted “service” (avoda) to mean worship through prayer, as it is written:  “Love God your Lord and serve Him with all your heart” (Devarim 11:13), and they explained (Ta’anit 2a), “What is serving with the heart? It must mean prayer.” By praying daily, one fulfills her biblical obligation to pray. To fulfill one’s obligation, one must begin with praise to God, then petition God for her needs, and conclude by thanking God for the good He has bestowed upon her. The Torah does not specify how long one’s prayers must be. Therefore, some shorten their prayers and others lengthen them, yet they all fulfill their biblical obligation (MT, Laws of Prayer 1:2-3). Later, the Men of the Great Assembly formulated a set prayer text, as will be explained below (section 6).

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:

Determining with perfect certainty that any particular animal is not a treifah would require a laborious and time-consuming post-mortem examination. Indeed, since perforation of the major portion of the trachea or even a minute hole in the esophagus renders an animal a treifah, it is impossible to make an absolute determination that the animal is not a treifah because, in an otherwise kosher animal, the perforation may be masked by the slaughterer's incision. The Gemara, Hullin 11a, determines that no such anatomical examination is necessary. Instead, the Gemara declares that the rabbinic rendition of the verse "according to the majority to determine" (Exodus 23:2) serves to establish the principle of rov, or "majority." The principle of rov establishes that, given the existence of a major set and of a minor set, each set containing entities of a single species but of differing halakhic status, one may assume that any unexamined entity within that species is a member of the major set. Applied to the kashrut status of any unexamined animal, the principle of rov serves to establish that the animal in question is not a treifah: The majority of animals are not treifot and hence constitute the major set. Therefore, despite the existence of a minor set comprised of animals that are treifot, any slaughtered animal must be assumed to belong to the major set of non-treifah animals. Hence the meat of an unexamined animal—and its milk while the animal is yet alive—may be consumed by reason of reliance upon the principle of rov.

First we must know the principles of these halachoth of lashon hara and rechiluth. ("Lashon hara" is speaking disparagingly against one's friend, and "rechiluth," telling one the evil thing that his friend has spoken against him or done against him.) [The principles]: It [lashon hara and rechiluth] is forbidden even if true, as will be explained below, please G–d, in the name of all the poskim. Also, the prohibition of lashon hara and rechiluth applies both in his [the object's] presence and not in his presence. Also, there is no difference between speaking and receiving [lashon hara and rechiluth], all of which we shall explain further. A "receiver" of lashon hara is one who believes in his heart what is told him by his friend even if he does not abet him in the telling but only believes in his heart the lashon hara and rechiluth that he has heard. If he does believe it, he is called "the bearer of a false report" and transgresses (Shemoth 23:1): "Do not bear a false report." All of these principles have roots and branches, as in the other parts of the Torah. May the L–rd grant that we know them comprehensively.

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.

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.

Behold it is already been completely explained that it is inappropriate to count every negative or positive commandment that is found in the Torah, for it [may be] a repetition. Indeed it is appropriate to count [only] the content that we are commanded about or prohibited from. And it is impossible to have knowledge of a repeated negative or positive commandment that is coming to give additional content, without a teacher that instructs it. And [these teachers] are those that received the traditional explanation, peace be upon them. And do not err also because the prohibition is repeated with different words - like His, may He be exalted, saying (Leviticus 19:10), "You shall not pick (teollel) your vineyard bare," once He also said (Deuteronomy 24:19), "and overlook a sheaf in the field, do not turn back to get it," and He said (Deuteronomy 24:20), "When you beat down the fruit of your olive trees, do not extract (tefaer) again." For these are not two negative commandments, but rather one prohibition about one matter - and that is that he not take that which he overlooked from the grain or the fruits when he gathers them. And He brought two examples about them - from grapes and from olives. And He called what is left of the grapes ollelot; and of the olives, "pe'erot. And the understanding of tefaer is do not remove that which you have overlooked in some of your pe'erot - and those are the branches. (See the glosses on this book.) And to this principle, it is appropriate to attach that which I will [now] say. And that is that when I say that it is appropriate that they count the content about which we are commanded or from which we are prohibited, it is on condition that the content that we are prohibited is a separate negative commandment for each and every matter; or that the transmitters [present] a proof that separates one matter from another and that each of them requires [its own] prohibition. However when there is one negative commandment that includes many matters, only that negative commandment is counted, and not all of the content that is included in that negative commandment. And this is a general prohibition, for which we do not give lashes - as we will now explain. And that is that they said (Sanhedrin 63a) in explanation of His saying, "You shall not eat upon the blood" (Leviticus 19:26), "From where [do we know] that one who eats from an animal before its soul departs is in [transgression of] a negative commandment? As it is stated, 'You shall not eat upon the blood.' Another matter: From where is it derived that one who eats the meat of an offering before the blood has been sprinkled [on the altar] is in [transgression of] a negative commandment? We learn to say,'You shall not eat upon the blood' - you shall not eat the meat when the blood is still in the bowl. Rabbi Dosa says, 'From where [do we know] that we do not provide a meal for mourners of those executed by the court? We learn to say, "You shall not eat upon the blood."' Rabbi Akiva says, 'From where [do we know] that a Sanhedrin that killed a soul (i.e., that sentenced a person to death) may not taste anything that entire day? We learn to say, "You shall not eat upon the blood."' Rabbi Yochanan says, 'From where [do we know] the prohibition against the behavior of a stubborn and rebellious son? We learn to say, "You shall not eat upon the blood."'" Behold that we are prohibited from all of these five things, but they they are all included under one negative commandment. And they also said (Berakhot 10b), "From where [do we know] that a person should not taste anything until he prays? We learn to say, 'You shall not eat upon the blood' - you may not eat before you pray for your blood." And in explanation, they said in the Gemara (Sanhedrin 63a), "For all of [these specific prohibitions], he is not given lashes - as it is a general negative commandment." And they also explained that a general negative commandment is when two or three prohibitions come from one negative commandment. So it is inappropriate that they should count each and every prohibition it included as a separate negative commandment; but rather only the one negative commandment that includes all of them. And similar to this negative commandment - meaning, "You shall not eat upon the blood," - is His saying, "you shall not place a stumbling block before the blind" (Leviticus 19:14). As it also includes many matters, as will be explained (Sefer HaMitzvot, Negative Commandments 299). And likewise, His saying, "You must not carry a false rumor" (Exodus 23:1) - behold, it too includes many matters, as will be explained (Sefer HaMitzvot, Negative Commandments 281). And this is one of the types of general negative commandments.

A disciple who sits before his master and sees a point in favour of a poor man and the master wishes to pronounce him guilty, must plead in his [the poor man's] favour, and if he keeps silent he commits a sin on account of 'From a false matter keep far.'³¹Sheb. 31a: ‘Whence do we know that a disciple sitting before his master who sees a point in favour of a poor man or against a wealthy man should not remain silent? (upon noticing that his master has reached an erroneous decision). For it is said, From a false matter keep far’ (Ex. XXIII, 7). In San. 6b this is derived from, Ye shall not be afraid of the face of any man (Deut. I, 17). , Tosaf. Sheb. ibid., s.v. ורואה. Similarly, if both litigants are either poor or rich. The Talmud is stating ‘a point in favour of a poor man or against a wealthy man’ contains a remarkable feature (רבותא), viz., that the disciple should not think that although legally the poor man has a point in his favour, nevertheless, ‘My master must feel that a wealthy man is right, for how is it possible that a wealthy man should make a false claim against a poor man.’ Notwithstanding this line of reasoning, the disciple is dutibound to speak up — RaShaL, Tummim. For other opinions, cf. BaḤ and TaZ.

Rabbi Yan'ai declared, "The words of the Torah were not given in final form (ḥatukhin). Rather, with regard to every single matter that the Holy One, blessed be He, told Moses, He enunciated forty-nine considerations [to render it] pure and forty-nine considerations [to render it] impure. Moses exclaimed before Him, 'Sovereign of the Universe, when shall we arrive at a clarification of Halakhah?' God said to him, 'According to the majority shall you decide (Exodus 23:2). If those who declare it impure are more numerous, it is impure; if those who declare it pure are more numerous, it is pure.' "

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:

(11) And all this that we have written applies to one who speaks singly or who listens singly, but if he joins himself to a company of wicked men and speakers of lashon hara to tell them or to listen to them, he also transgresses (Shemoth 23:2): "Do not incline after many for evil," which is an exhortation not to agree with or even join with evildoers, though they be many. (And see further, Positive Commandment 6, where you will see that he also transgresses a positive commandment by this evil "joining." And see above (Negative Commandment 4) where I have cited Pirkei d'R. Eliezer on his [R. Eliezer Hagadol's] will to his son in this regard.

b) His prime intent must be to be zealous for the truth and to help him that has been wronged (i.e., the cheated one). And he must not rejoice in the shame of the cheater, even though he knows clearly that he cheated him. And in this connection we shall include yet another detail, that is almost the same as the original. That is, [in order to tell] he must assume that benefit will result — as opposed to an instance where he knows the nature of the cheated one not to be a man of words who would go to judgment and ask people to help him in this matter, but would only grieve in his heart at the story and harbor hatred in his heart against the merchant. [In such an instance] he should not tell him. Even more, if he asks him [to tell] in this instance and in the previous instance that we described — that is, in an instance where, according to the din, it is forbidden to back out of the transaction, it is a mitzvah to praise the purchase before him, and he does not thereby transgress (Shemoth 23:7): "From a thing of falsehood shall you keep far," (as Chazal have said [Kethuvoth 17a]: "If one made a bad purchase in the marketplace — he should praise it in his eyes.")

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

(13) And all this that we have discussed until now applies even when he speaks [lashon hara] about his friend that is true; but if within his lashon hara or rechiluth there becomes intermixed something which is partially false, he also transgresses a positive commandment of the Torah, viz. (Shemoth 23:7): "From a thing of falsehood keep far." And his name [i.e., his classification] also changes for the worse thereby, his now being called "motzi shem ra" ("the spreader of a bad name"). And his punishment is far more severe than that for the speaker of lashon hara and rechiluth in general.

The Gemara, Hullin 113b, declares that the biblical prohibition against cooking and eating commingled milk and meat is not attendant upon meat cooked with the milk removed from an animal that has been slaughtered. Milk derived from a slaughtered animal is excluded from the prohibition because, according to talmudic exegesis of the verse "you shall not cook a kid in the milk of its mother" (Exodus 23:19; Exodus 34:26; Deuteronomy 14:21), the biblical prohibition applies only to the milk of an animal "that has the capacity to become a mother" (re'uyah lehiyot em). Obviously, a dead animal can no longer bear a child and hence lacks the capacity to become a mother.

Of even more significance insofar as actual execution of capital punishment is concerned are the rules of evidence governing criminal proceedings under Noachide law. Jewish courts require testimony of at least two credible eye-witnesses for imposition of either corporal or capital punishment. The Bible expressly declares, "At the mouth of two witnesses, or three witnesses, shall he who is worthy of death be put to death" (Deut. 17:6). The testimony of a single witness and, a fortiori, circumstantial evidence, is not admissible.⁵The testimony of witnesses who have actually seen the act may be dispensed with only if culpability can be inferred with absolute certainty from the facts to which eyewitness testimony is presented. For example, Shevu‘ot 46b, states that liability for battery may be established even if witnesses have not observed the act itself provided that the evidence incontrovertibly established (a) that the wound could not possibly be accidental or self-inflicted, e.g., a bite on the back or on the elbow joint; and (b) that no other person was present and hence the defendant must have committed the act. Tosafot, Shevu‘ot 34a, asserts that such evidence may be admitted in capital cases as well. Rambam, Sefer ha-Mizvot, mizvot lo ta'aseh, no. 290, basing himself upon Mekhilta 20:211, regards the verse "the guiltless and righteous you shall not kill" (Exodus 23:7) as an admonition addressed to the Bet Din directing its members not to execute judgment when it is at all possible that the accused is innocent, i.e., when the evidence is circumstantial in nature.

When the new moon comes again at the time of ripening in the Land of Israel, then one year is complete, whether the year is twelve months or thirteen. For this reason, in Hebrew they did not refer to the month of ripening as Nisan, rather “first.”⁸⁰ The first month in the Hebrew calendar might not always coincide with the Babylonian month of Nisan. The same is true for all the months. Therefore, other than in books of the exilic period, you will not find in the twenty-four books (the Hebrew Bible)⁸¹ The canon for the Hebrew Bible contains 24 books: Pentateuch (5), Early Prophets (4), Later Prophets (4), Psalms, Proverbs, Job, Daniel, Ezra-Nehemia, Megilot (5), and Chronicles. names for the months as they are known today, of which the first is Nisan.⁸² The names used for the months of the Hebrew calendar – Nisan, Iyar, etc. – for approximately the last two and a half millennia are Babylonian in origin. These names were adopted by the Jews after the destruction of the first Temple. Until that time the months were not given names and were referred to numerically – first month, second month, etc. So the year for Israel does not begin with the equinox, rather with the day of the new moon. Once we know that this month is the first, we observe the holidays in the seventh month from it. Thus, if Passover was in the days when the barley ripens, then Pentacost will be at the time of cutting and Tabernacles at the time of gathering.

When the new moon comes again at the time of ripening in the Land of Israel, then one year is complete, whether the year is twelve months or thirteen. For this reason, in Hebrew they did not refer to the month of ripening as Nisan, rather “first.”⁸⁰ The first month in the Hebrew calendar might not always coincide with the Babylonian month of Nisan. The same is true for all the months. Therefore, other than in books of the exilic period, you will not find in the twenty-four books (the Hebrew Bible)⁸¹ The canon for the Hebrew Bible contains 24 books: Pentateuch (5), Early Prophets (4), Later Prophets (4), Psalms, Proverbs, Job, Daniel, Ezra-Nehemia, Megilot (5), and Chronicles. names for the months as they are known today, of which the first is Nisan.⁸² The names used for the months of the Hebrew calendar – Nisan, Iyar, etc. – for approximately the last two and a half millennia are Babylonian in origin. These names were adopted by the Jews after the destruction of the first Temple. Until that time the months were not given names and were referred to numerically – first month, second month, etc. So the year for Israel does not begin with the equinox, rather with the day of the new moon. Once we know that this month is the first, we observe the holidays in the seventh month from it. Thus, if Passover was in the days when the barley ripens, then Pentacost will be at the time of cutting and Tabernacles at the time of gathering.

We also find written⁸³ Ibn Ezra now proceeds to show that for some matters the year begins with the month of Tishre. Here he seems to be countering the Karites, who did not accept the first of Tishre as Rosh haShana. The Karites argued that there is no Scriptural basis for the first of Tishre being anything other than a day when work is forbidden (Leviticus 23:23–25) and special sacrifices are offered (Numbers 29: 1–5). The Karites began the year for all religious matters with the first of Nisan. with regard to Tabernacles “at the turn of the year” (Exodus 34:22), and also “at the departure of the year” (ibid. 23:16). Now the same day when one year ends a new year begins. We also find that God instructed us in a law of Haqhel, when the entire Torah is read during the holiday of Tabernacles of a Sabbatical year (Deuteronomy 31:10–13). There it is written “in order that they may learn” (ibid. 31:12). It is not likely that this took place after half a year.⁸⁴ Thus, Haqhel certainly took place at the beginning of a Sabbatical year, indicating that a Sabbatical year began around the time of Tabernacles. Do not be perplexed by the word “At an end (miqqez) of seven years” (ibid. 31:10),⁸⁵ The verse concerning Haqhel reads: “At the end of seven years, in the time of the Sabbatical year, on the holiday of Tabernacles,” which seems to indicate that the celebration of Haqhel took place at the conclusion of the Sabbatical year and the beginning of the eighth year. for we similarly find “At an end (miqqez) of seven years you shall send forth, each man his brother” (Jeremiah 34:14).⁸⁶ We know that servants were set free after six years (Exodus 21:2). Thus “miqqez” must here refer to the beginning of the seventh year. Similarly for Haqhel, the word “miqqez” means “beginning” rather than “end.” For each thing has two edges, a front edge and a back edge. The Sabbatical year began with Tishre,⁸⁷ Here Ibn Ezra refutes the Karites who began the Sabbatical year with Nisan. (See Ibn Ezra’s commentary to Leviticus 25:20.) which is the seventh month, since then the half year of planting began. Thus it states regarding the Sabbatical year “do not plant” (Leviticus 25:4), and “You shall plant on the eighth year” (ibid. 25:22).

From where do we know that if one litigant comes to beit din dressed in rags and the other in the finest of clothes, then the beit din orders the latter, “Either dress similarly to your adversary or give your adversary clothes of the same quality to wear”? As it says, “Avoid all falsities” (Shemot 23:7) [whereas the dayanim might judge a litigant more favorably due to his clothing]…. From where do we derive that one should not plead his case to the dayanim in the absence of the opposing litigant? [Also] as it says, “Avoid all falsities”....

That He prohibited us from prophesying in its name. And that is that one say, "God commanded us to worship it," or that it, itself commanded to worship it and set up a reward and warned about a punishment - as the prophets of Baal and the prophets of Asherah thought. And no specific clear prohibition appears in Scripture for this - meaning not to prophesy in its name. However Scripture does explain the punishment and the law of the death penalty for one who prophesies in its name. And that is His, may He be exalted, saying, "or who speaks in the name of other gods, that prophet shall die" (Deuteronomy 18:20). And this death penalty is with strangulation, according to what was made a principle with us - any undifferentiated death penalty stated in the Torah is nothing other than strangulation. And you already know the principle that I explained in Principle 14 of the principles that preceded this essay: And that is their saying, "It does not punish unless it prohibits." And [this commandment's] prohibition is His statement, "and make no mention of the name of other gods" (Exodus 23:13). And it is not impossible for one negative commandment to prohibit several things - and its status will not be that of a general negative commandment, when each and every punishment is explained [by itself]. And behold I will bring you examples of this in their place. And the laws of this commandment have already been explained in the eleventh [chapter] of Sanhedrin. (See Parashat Shoftim; Mishneh Torah, Foreign Worship and Customs of the Nations 5.)

2. One who hires false witnesses in order to transfer a maneh from Reuven to Shimon is exempt under human law but liable under heavenly law. RAMA: This only applies where he did not, in fact, owe him money. If, however, Reuven did owe Shimon money, but the witnesses happen to be false, he would be exempt even under heavenly law, but would violate “midvar sheker tirchak.” [Meaning, stay away from a lie]. The same applies if he did not hire them but simply convinced them to testify falsely (Tosefos). This all applies to a case where the individual hires false witnesses for a friend and the friend does not confess. If, however, he hired false witnesses for himself and illegally transferred money or if the plaintiff confesses, he is required to remove the stolen item from his friend’s hand (Beis Yosef). If he claims it was done properly, but the witnesses admit they testified falsely, they would be liable to pay, as was explained above in 29:2 and will be explained later in Siman 38.

There is, however, another entirely distinguishable principle of rov that is applied when the question is whether a given entity became detached from a major set composed of identifiable members or from a corresponding minor set also composed of identifiable members. Since all members of those two sets were identifiable at least at one time, that rov is known as a "rubba de-ita kamman—a rov that is present before us." The latter principle of rov is derived directly from the biblical phrase "according to the majority to determine" (Exodus 23:2). The paradigmatic example is meat found in the street in a city having nine kosher butcher stores and one non-kosher establishment. The meat that has been found has clearly become separated from its original source. In that situation there is a major set comprised of nine members and a minor set having a single member. Application of the principle of rov yields the determination that the meat in question has become separated from a member of the major class and hence the meat is ruled to be kosher. The talmudic formulation of that principle is "Kol de-parish me-rubba parish—All that are separated are separated from the majority."

However, return of liberated territories for considerations other than preservation of life raises an entirely different set of halakhic considerations. On the basis of Avodah Zarah 20b, Rambam, Hilkhot Avodat Kokhavim 10:3-4, rules that it is forbidden for a Jew to sell houses or fields in Erez Yisra'el to a non-Jew.³⁶It is generally accepted that the prohibitions flowing from lo teḥanem apply to all non-Jews and not only to the Seven Nations. This is stated explicitly by Tosafot, Avodah Zarah 20a; Sefer ha-Eshkol, III, 123; Maharam Schick al Taryag Miẓvot, no. 426; and Ḥazon Ish, Shevi‘it 24:1 and Hilkhot Avodat Kokhavim 65:1. In this instance, Rambam departs from his usual practice of not supplying the underlying rationale upon which the halakhah is predicated. Rambam poses the question, "And why may one not sell [houses and fields] to them? For it is written, 'lo teḥanem'—Do not give them permanent encampment in real property, for if they will not possess real property, their residence is transient." If non-Jews are not given an opportunity to acquire real estate their presence in the Holy Land will be temporary and transient in nature. A person who does not own land, who does not own a home and who possesses neither fields nor orchards, is a person who has no roots. Such a person's domicile is inherently transitory. An individual acquires permanence and stability within a given geographic locale only when he requires property. Hence, the Torah forbids the sale of real estate in Erez Yisra'el to non-Jews lest through acquisition of land their domicile become permanent in nature.³⁷Ḥazon Ish, Shevi‘it 24:1 and Hilkhot Avodat Kokhavim 65:1, opines that the ultimate rationale underlying the prohibition against sale of real property in Ereẓ Yisra’el to a non-Jew is identical with the reason for the prohibition against permitting idolaters to dwell in Ereẓ Yisra’el. In the latter case, the reason is explicitly stated in Scripture: “They shall not dwell in your land lest they cause you to sin against me” (Exodus 23:33). Both commandments, according to Ḥazon Ish, are akin to the commandment concerning eradication of paganism in the Land of Israel recorded in Deut. 7:5 and Deut. 12:2-3. This analysis was earlier advanced by Sefer Miẓvot Gadol, no. 48. Although Ḥazon Ish’s inference is from the terminology employed by Rambam in Hilkhot Avodat Kokhavim 10:3, it would seem that this thesis is more readily substantiated by Rambam’s comments in 10:4 in which he describes sale of real estate as leading to permanent residence and then, in the very same halakhah, proceeds to state, “Similarly it is forbidden to praise them … for this causes [Jews] to cleave to them and to learn from [their] evil deeds” (italics mine). Rambam appears to predicate both proscriptions upon the identical rationale. It is the divine plan that ultimately Erez Yisra'el in its entirety become the exclusive inheritance of the community of Israel.

He prohibited us from settling idol worshippers in our land, so that we not learn their heresy, with His saying, "They shall not dwell in your land lest they cause [you] to sin, etc." (Exodus 23:33). And if an idolator wants to remain in our land, it is only allowed when he accepts upon himself not to worship idols. However idol worshippers may not dwell with us [in the Land of Israel], nor may we sell them a holding nor may we rent them a house. And in the explanation (Avodah Zarah 20a), they told us, "Do not give them an encampment in the land." (See Parashat Mishpatim; Mishneh Torah, Foreign Worship and Customs of the Nations 10.)

The selfsame analysis is directly relevant to the topical question of territorial concessions on the West Bank. Whether or not restoration of Arab sovereignty over portions of Judea and Samaria involves transgression of lo teḥanem, it may be argued, is directly contingent upon precisely the same question regarding the nature of this prohibition. It should be stressed that transfer of national sovereignty does not constitute a "sale" in the usual sense of the term. Cession of territory by one sovereign state to another does not infringe upon the property rights of the citizens of any country who may own property in the area ceded by one country to another. Essentially, national sovereignty carries with it the right to display the flag of the sovereign power, to enforce the laws of the sovereign authority, and to collect taxes, but is irrelevant to proprietary interest. Thus, transfer of political sovereignty does not constitute a "sale" in the literal sense of the term, except of course, insofar as publicly held land actually owned by the government is concerned. However, as has been cogently argued by Rabbi Betzalel Zolti, Chief Rabbi of Jerusalem, political sovereignty assuredly carries with it an element of domiciliary permanence.⁴¹Torah she-be-‘al Peh, XI (5729), 44-54. R. Ovadiah Hadaya, No‘am, XI (5729), 183-184, also declares return of liberated territory to be forbidden by virtue of lo teḥanem. There is a strong reason to infer that this was the position of R. Chaim Ozer Grodzinski as well. When questioned as to whether acquiescence to a partition plan for Palestine would be forbidden as a violation of lo teḥanem, he replied that such acquiescence was permissible and was not to be equated with granting territory to non-Jews since the land was in the jurisdiction of gentiles by virtue of conquest, and “the matter is not within the jurisdiction of the Jewish people so that it be said that they are granting ḥaniyah be-karka.” The clear inference is that cession of sovereignty with regard to territory under Jewish jurisdiction does constitute a violation of lo teḥanem. See Aḥi‘ezer: Koveẓ Iggerot, ed. Aaron Sorasky (Bnei Brak, 5730), I, no. 61. There is no question that if a certain geographic area is under the rule and administration of a Jewish government, the permanence of Jewish inhabitance is enhanced and that the reverse is the case when the administration and the political authority is vested in a non-Jewish government. Thus, although restoration of Arab sovereignty does not constitute a violation of lo teḥanem if that prohibition is understood as a ban solely against "sale" of real estate to non-Jews, it does constitute such a violation if understood as a general ban against any action which serves to enhance the permanence of non-Jewish domicile.⁴²It has been suggested that transfer or return of territory to Arab sovereignty is tantamount to permitting unrestricted immigration of non-Jews to such areas and hence constitutes a violation of “They shall not dwell in your land” (Exodus 23:33). See R. Abraham Weingart, Ha-Ma‘ayan, Tammuz 5738, p. 15. However, the applicability of this prohibition is not as clear as is the applicability of lo teḥanem. Although Rambam, Hilkhot Avodat Kokhavim 10:6, rules that this prohibition encompasses all non-Jews, Rabad disagrees and expresses the view that it is limited to members of the Seven Nations who inhabited the area at the time of the original conquest. Rabad expresses no such disagreement with regard to lo teḥanem. Moreover, Minḥat Ḥinnukh, no. 94, states that “it is possible” that the miẓvah does not require displacement of a non-Jew from land which he has purchased. However, Ḥazon Ish, Shevi‘it 24:1 and Hilkhot Avodat Kokhavim 65:1, state that sale of land to a non-Jew constitutes a violation of “They shall not dwell in your land” as well as a violation of lo teḥanem.

It has been noted earlier that a Jew is not halakhically bound to admonish a non-Jew in order to prevent the latter from transgressing.⁵⁰See above, note 38. Cf., however, R. Yom Tov Lipman Heller, Tosefet Yom Tov, Pirkei Avot 3:14, who does posit an obligation to utilize moral persuasion in convincing non-Jews to abide by the provisions of the Noachide Code. Tosefet Yom Tov cites an obligation to coerce non-Jews to accept the Seven Noachide Commandments. This is apparently a reference to the ruling recorded by Rambam, Hilkhot Melakhim 10:6. That obligation, however, flows from the commandment, “They shall not dwell in your land lest they cause you to sin against me” (Exodus 23:33), which applies only to non-Jews residing in Ereẓ Yisra’el. This does not, however, mean that Jews are absolved from all responsibilities with regard to non-Jews. The Gemara, Makkot 9b, declares that a non-Jew is culpable for violations of the Noachide Code even if he is ignorant of the halakhic restrictions because "he should have learned, but did not learn." The notion that the non-Jew "should have learned" certainly entails the assumption that the requisite information is available to those desiring to acquire such knowledge. Yet, it may readily be inferred from Rambam's comments, Hilkhot Melakhim 8:11, that Noachides do not possess an independent mesorah or tradition based upon divine revelation.⁵¹Cf., also Rambam, Commentary on the Mishnah, Ḥullin 100b. See also Rambam, Hilkhot Ma‘aseh ha-Korbanot 19:16, cited above, note 8. The authoritative source of the mesorah upon which the Noachide Code is predicated is the revelation which occurred at Mt. Sinai. Since only Jews were privileged to participate in that event, it is readily apparent that instruction in the Noachide laws must ultimately come from Jews. Jews are the bearers of the mesorah not only of the 613 commandments of the Children of Israel but also of the Seven Commandments of the Sons of Noah. Obviously, then, the Jewish scholar must be under some correlative obligation requiring him to impart knowledge. Otherwise a non-Jew could not justifiably be held accountable because "he should have learned but did not learn."

To not hear the claim of a litigant when it is not in front of his fellow litigant: That the judge not hear the claim of one, not in front of his adversary, as it is stated (Exodus 23:1), "You shall not raise a false report." And the reason is because people will speak idle words when not in front of their adversary. And the judge is commanded about this so that he not bring the untruths of one of them into his soul. And so does Mekhilta d'Rabbi Yishmael 23:1 come [to tell us] that this warning of "You shall not raise, etc." is said about this. And they also said there that it is also a warning to the litigant, for him too, not to make his claims to the judge not in front of his adversary, and even if the judge wants to hear it. And about this, it is also said (Exodus 23:7), "From a false matter, distance yourself." And they, may their memory be blessed, also said (Makkot 23a) that this negative commandment includes telling evil speech, and accepting it, and giving false testimony.

To not hear the claim of a litigant when it is not in front of his fellow litigant: That the judge not hear the claim of one, not in front of his adversary, as it is stated (Exodus 23:1), "You shall not raise a false report." And the reason is because people will speak idle words when not in front of their adversary. And the judge is commanded about this so that he not bring the untruths of one of them into his soul. And so does Mekhilta d'Rabbi Yishmael 23:1 come [to tell us] that this warning of "You shall not raise, etc." is said about this. And they also said there that it is also a warning to the litigant, for him too, not to make his claims to the judge not in front of his adversary, and even if the judge wants to hear it. And about this, it is also said (Exodus 23:7), "From a false matter, distance yourself." And they, may their memory be blessed, also said (Makkot 23a) that this negative commandment includes telling evil speech, and accepting it, and giving false testimony.

Not to have a sinner testify: That we not accept the testimony of a man who sins, and we not do anything on account of his testimony, as it is stated (Exodus 23:1), "do not place your hand with an evildoer to be a violent witness." And the explanation comes about this (Sanhedrin 27a), "Do not place an evildoer as a witness, do not place a violent one as a witness," meaning a violent person - to exclude violent people and thieves who are disqualified from testimony, as it is stated (Deuteronomy 19:16), "If a violent witness comes upon a man."

Not to incline after the many in capital punishments because of one: That a judge should not go after the opinion of the majority in capital punishments when the difference will only be one man (see Sefer HaMitzvot LaRambam, Mitzvot Lo Taase 282). And the elucidation of this is that when there is a disagreement among the judges about the case of a man, and some say that he is liable for the death penalty and some say that he is not liable - and those who [would] make him liable are one more than those who [would] make him innocent - that the judge should not do with the [suspected] sinner according to the words of those who make him liable; as it is stated (Exodus 23:2), "Do not be after the many to do bad" - meaning to say, do not go after the majority that would result in concluding a verdict of death. And this is the expression stated in the Scripture, "to do bad" - meaning to say, to a liability for the death penalty. And that is when there is an exact majority, meaning to say that the decision is only because of one person. But if the decision is with two, we follow their words, even 'to do bad.' And in the Mekhilta d'Rabbi Yishmael 23:2, "Leaning to the good is according to one, but to the bad is according to two."

That the one who advocated innocence at the beginning of capital cases not advocate guilt: That one of the judges not go after the opinion of another greater judge or even after the opinion of the majority, because he trusts him - to make liable or to make innocent - if the matter is not understood to him in his mind. And if it is a case that is dependent upon a decree of scripture (gezerat hakatuv), a gezerah shava or a hekesh (the latter two being exegetical inferences based on similar wording in two sections), he must know it himself and not rely and trust one of the [other] judges or the majority; as it is stated (Exodus 23:2), "and you shall not answer about a dispute to incline." [This is] meaning to say, do not say something about a dispute to incline - meaning only from the side of leaning towards the words of a great judge or towards the majority - and not from the side of your understanding. Or if you want to be silent from [saying] that which is in your heart about the case and [instead] to incline after their words, do not do so. And the language of the Mekhilta d'Rabbi Yishmael 23:2 is "'You shall not answer about a dispute to incline' - that you not say, 'It is enough for me that I be like Rabbi x,' but rather, say what is in your heart. Maybe, monetary cases are also like this? [Hence] we learn to say, 'to lean after the majority.'" And within this very negative commandment is included that the one who advocates innocence in capital cases not go back and advocate guilt; as it stated, "and you shall not answer about a dispute to incline" - meaning to say, "let not your words be inclined towards guilt" (Sanhedrin 34a). And so, too, included is that we do not open towards guilt in capital case. And the explanation then comes, "and you shall not answer about a dispute to incline," meaning to say, the opening of your words should not be for guilt. As per force, we must explain it about the beginning of the case, since it is impossible to say that it warns that you not answer guilt about about the whole case. As, if so, no man would ever be prosecuted.

The commandment of inclining towards the many: To incline towards the many, and that is when there arise a disagreement among the sages in a law of all the Torah laws - and so too in a private case, meaning to say a case that would be between Reuven and Shimon, for example - when there would be a disagreement between the judges of their city, that some of them rule guilty and some rule innocent, to always go after the majority; as it is stated (Exodus 32:2), "to incline towards the many." And in the elucidation, they, may their memory be blessed, said (Chullin 11a), "The majority is by writ of the Torah." And this choice of the majority appears to be when the two opposing groups are equally known for their Torah wisdom - as it cannot be said that a small group of sages would not be decisive against a great group of ignoramuses, and even like [the number] that went out from Egypt. But with approximately equal wisdom, the Torah informed us that the many opinions will always conform to the truth more than the minority. But whether - according to the opinion of the listener - they agree to the truth or they do not agree to the truth, logic dictates that we do not swerve from the path of the majority. And that which I say that the choice of the majority is always with two groups that disagree that are equal in the wisdom of truth is said so about every place except for the Sanhedrin. As with them, we are not exacting when they disagree as to which group knows more; but rather we always do like the words of their majority. And the reason is because they had an obligatory number [of people] by writ of the Torah; and it is as if the Torah explicitly commanded, "Do all of your matters according to the majority of these" - and also as they were all great sages.

To not have mercy upon a poor person in his case: To not have pity in judgment upon the weak and impoverished at the time of the judgment, but rather one must judge the case truthfully. [It should not be] from the angle of pity upon him, but rather [the judge] must treat [all] the same - whether he is rich or impoverished - to force him to pay what he is obligated; as it is stated (Exodus 23:3), "And you shall not favor an impoverished man in his dispute." And this matter is repeated in another place (Leviticus 19:15), "do not lift up the face of the impoverished." And the language of Sifra, Kedoshim, Chapter 4:2 is "Do not say, 'He is a poor man and since I and this rich man are obliged to sustain him, I shall vindicate him in judgment, so that he can support himself honorably.' [Hence,] we learn to say, 'do not lift up the face of the impoverished.'"

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.

To not tip the judgment of an evildoer: To not tip the judgment of one of the litigants when one knows that he is an evildoer and a master of sin, as it is stated (Exodus 23:6), "You shall not sway the judgment of your destitute in his quarrel." And its explanation is that he is destitute in commandments, as its understanding is not that he is destitute in money; since it is not necessary to say that he not sway the judgment against him, to steal from him in his poverty. Rather, we have been commanded that even though he is an evildoer, the judge should not say, "Since he is an evildoer, I will sway the judgment against him" - as the judgment of evildoers is for God, and not for you. And so is it in Mekhilta, "[If] an evildoer and a proper man stand in front of you in judgment, you might say, etc."

To not conclude the judgment by estimation: That a court only kill the accused with witnesses that testify about the same matter about which he is to be killed; that they actually saw him with their eyes, [not] that they testify against him based on strong indications. And about this is it stated (Exodus 23:7), "and an innocent one and a righteous one you shall not kill" - meaning to say, be very careful not to kill a person about whom it is possible that he did not do what they said that he did. And so is it explained in Mekhilta d'Rabbi Yishmael 23:7:2, as there they said, "If they saw him pursuing another to kill him, the knife in his hand, and they [warned him, 'If you kill him, you will be killed.' And the witnesses] averted their eyes [and did not see him striking him] and afterwards they found him (the victim) in the death throes, the knife dripping blood in the hand of the murderer — I might understand that he is liable [for execution. Hence,] we learn to say, 'and a clean one and righteous one you shall not kill.'" Behold, because they averted their eyes at the time of the striking, this one is exempted. And the matter is proper and fitting to be like this. As if the Torah had permitted to establish the parameters of punishment with strong possibilities, it would come out from the matter that sometimes we would kill people for something they did not do, as there is great breadth to the possible. And know this and understand it, as it is a clear thing. And therefore, He, may He be elevated, closed this gate and commanded us about it. And all of "the precepts of the Lord are just, rejoicing the heart" (Psalms 19:9). And also included in this negative commandment is one about whom two witnesses have testified that he committed a [different] sin; for example, that one testifies that he did work on Shabbat and one testifies that he worshiped idolatry, such that this one is not condemned by their testimony, as it is stated, "and an innocent one and a righteous one do not kill." And so did they, may their memory be blessed, say (Mekhilta d'Rabbi Yishmael 23:7:2), "If one testified against another that he worshiped the sun, and another, [that he worshiped] the moon, I might understand that they combine (to constitute the necessary two witnesses). [Hence,] we learn to say, 'and an innocent one and righteous one you shall not kill.'"

To not take a bribe: That the judge not take a bribe from the litigants - even to judge truthfully - as it is stated (Exodus 23:8), "And you shall not take a bribe." And this negative commandment is repeated in the Torah about this matter in another place (Deuteronomy 16:19). And so did they say in Sifrei Devarim 144:10, "'You shall not take a bribe' - even to make the innocent, innocent and the liable, liable."

The commandment of the releasing (shmitat) of lands: To make ownerless everything that the earth put out in the seventh year, which is called the shmitta (release) year, because of this process in which we are obligated; and that all who want to [take] its fruits may do so - as it is stated (Exodus 23:11), "But the seventh you shall release it and abandon it, and the needy among your people will eat of it, and what they leave the beasts will eat; you shall do the same with your vineyards and your olive groves." And the language of Mekhilta DeRabbi Shimon bar Yochai 23:11: "And were the vineyared and the olive groves not included?" [This] means to say that the beginning of the verse that stated, "release it and abandon it" includes everything that grows in the earth, whether they are fruits of the tree or fruits of the ground. And [so] why did Scripture specify these two? "To compare the other types of trees to the vineyard, to teach that like there is a positive commandment and a negative commandment with the vineyard - as behold, it is written explicitly about it (Leviticus 25:5), "and the grapes that you set aside, do not reap" - so too, is there a positive commandment and a negative commandment in all of the other trees." And hence, it specified vineyard and olive grove, to teach about this matter. As the intention of the verse was not specifically about the vineyard and olive grove alone, but rather it is the same with all the other fruits of the tree. Rather, it mentioned one of them and it teaches about all of them, as this is one of the devices through which the Torah is expounded. And this commandment to make all of the fruits ownerless and the other commandment that God commanded us to rest in it - as it is stated (Exodus 34:21), "and rest from plowing and reaping" - are [both] connected.

Yet, over the years, a number of rabbinic authorities have sanctioned the sale of real estate to non-Jews, at least in certain limited circumstances. Mizbeaḥ Adamah, an important nineteenth-century Sephardic source, reports that noted rabbinic authorities had themselves done so in the past and cites several by name. Indeed, earlier scholars were perplexed by the narrative in I Kings 9:11 which reports that King Solomon bestowed twenty cities in the Galilee upon Hiram, king of Tyre, in appreciation of the latter's assistance in providing materials needed for use in the construction of the Temple. There is no record of Solomon having been censured for this action.¹⁰See, however, the commentary of Abarbanel on I Kings 9:10. Mizbeaḥ Adamah explains that the prohibition against the sale of real estate to a non-Jew is applicable only to idol worshippers but not to other gentiles. Indeed, idolaters are specifically denied the right of domicile in the Land of Israel lest they cause the Jewish populace to become enmeshed in pagan practices. "They shall not dwell in your land lest they cause you to sin against Me, for you will serve their gods" (Exod. 23:33). Many authorities (with the notable exception of Rambam, Hilkhot Avodah Zarah 10:6) rule that since specific reference is made to idolatrous influences, only pagans are excluded from the right of domicile. Mizbeaḥ Adamah views the prohibition against the sale of property as being simply an extension of the prohibition against domicile in the land of Israel, and hence similarly limited in its application solely to idolaters.¹¹This prohibition is also cited by R. Abraham I. Kook, Mishpat Kohen, nos. 58, 61, and 63, and by R. Zevi Pesach Frank, Kerem Ẓion, III, no. 13, as well as by R. Eliyahu Klatzkin, Teshuvot Imrei Shefer, no. 92, but is rejected by R. Ya‘akov David Wilofsky (see Mishpat Kohen, no. 61), R. Naftali Zevi Yehudah Berlin, Kuntres Dvar ha-Shmittah and Ḥazon Ish, Shevi‘it 24:3. In accordance with the above distinction, Mizbeaḥ Adamah rules that there is no restriction against the sale of real estate to Moslems, who profess a monotheistic belief. This thesis also serves to explain Solomon's gift to Hiram. Since Hiram was not an idol worshipper, there existed no halakhic obstacle to the transfer of land to him by King Solomon. Rabbi Yosef notes that, quite obviously, this line of reasoning is cogent only with regard to the prohibition of lo teḥanem, but fails to satisfy objections which might be raised on the basis of Ramban's position that the sale of land to a non-Jew also entails transgression of the commandment "And the land shall not be sold in perpetuity." He notes that there is, however, the possibility that Solomon expressly stipulated as a condition of his gift to Hiram that the cities were to revert to their original owners upon the advent of the jubilee year. Rabbi Yosef opines that consideration of Ramban's position would not preclude sale of land "in our day" since observance of the jubilee year lapsed with the destruction of the Temple. This contention may, however, be challenged, since even under contemporary conditions, all lands which are sold are subject to reversion to their original owners in the messianic era, which is to be accompanied by reinstitution of the observance of the jubilee year.

The commandment to rest on Shabbat: To rest from work on the Shabbat day, as it is stated (Exodus 23:12), "on the seventh day you shall rest" (Sefer HaMitzvot LaRambam, Mitzvot Ase 154). All of its content is written above in the negative commandment that comes about it (Sefer HaChinukh 32). And the commandment of Shabbat is repeated up to twelve times.

To not swear by idolatry: That we not swear by idolatry - and even to its worshipers - and that we not make a gentile swear by it, as it is stated (Exodus 23:13), "and you shall not mention the name of other gods." And we have understand that included in this mentioning is whether one swears or causes to swear. And there are some that explain that the main negative commandment [here] is only coming about one who does business with a gentile on his holiday and makes him profit, as he goes and thanks [his god], and [so] he transgresses "you shall not mention"; meaning that others should not mention it in the forbidden manner, which is with intention to serve them. As this is forbidden also to [gentiles] by Torah writ, since the Children of Noach are prohibited in idolatry. And they, may their memory be blessed, added a distancing and said (Sanhedrin 63b) that a man should not say to his fellow, "Wait for me by the side of idolatry x."

It is written [in the Torah]:¹Exodus 23: 12. "…so that your ox and donkey may rest…" Here the Torah commands us that the animals of a Jew must also rest [on Shabbos]; and not only cattle, but all animals. Therefore, it is forbidden to allow your animal to carry out a load, because even if the animal went out on its own, into the public domain carrying a burden, you have violated a positive command of the Torah.²Although the animal may be permitted to do a melachah (“work”) of its own volition, such as eating growing grass, you must not allow it to do a melachah which is not of its own will, such as carrying a load. [v. Mishnah Berurah 305: 77] Even if the object [the animal is carrying] is ornamental, nevertheless, it is [considered] a burden. However, if the purpose of the object is to heal [the animal], such as a bandage on a wound, the animal may go out with it. Similarly, anything the animal requires for its safekeeping,³An identification collar may not be worn because it is only an indirect safeguard for the animal. [Aruch Hashulchan 305: 5] Rabbi S. Z. Auerbach zatzal, disagrees and permits it, for it ultimately benefits the animal. is considered like a garment for a human being and the animal may go out with it. But something which is for excessive safeguarding⁴See next paragraph. is forbidden.⁵Concerning the wearing of objects to ward off an עַיִן הָרַע (evil eye) or to prevent damaging others, such as a muzzle, see Shulchan Aruch 305: 11, 17 and below paragraph 7. Similarly, an object that this [particular] animal cannot be safeguarded with, though another animal can be safeguarded with it, is considered a burden for this animal and is forbidden.

It is written in the Torah: "you will not cook a kid in the milk of its mother" three times (Exodus 23:19; Exodus 34:26; Deuteronomy 14:21); once for the prohibition of cooking, once for the prohibition of eating, and once for the prohibition of receiving benefit [from the cooked meat and milk products]. The prohibition of eating is presented in the language of cooking, to say that there is no prohibition from the Torah [in regard to meat and milk] unless it is in a manner of cooking, but rabbinically it [the mixture of meat and milk] is forbidden in every way. All meat and milk [mixtures] that are not forbidden from the Torah are permitted to benefit from.

The commandment of celebration on the festivals: To celebrate on the festivals; and that is that we have been commanded to come up for the festival to the Temple three times a year - and they are [before] Pesach, Shavouot and Sukkot, in order to celebrate there, as it is stated (Exodus 23:14), "Three festivals shall you celebrate for Me in the year." And the matter of celebration is that we should go up there with a sacrifice and we slaughter it as peace-offerings (shelamim) in honor of the festival. And this commandment is repeated twice in the Torah. And they, may their memory be blessed, said in Tractate Chagigah 6b [that] three commandments was Israel commanded on the holiday - celebration, being seen and joy.

And [it] is practiced at the time of the Temple by males, but not by females. And it is not all males [that are obligated]. As anyone who is lame or blind - even in one of his eyes - or sick or old or very pampered, such that he could not go up by foot is exempt; and so [too, those the sex of which is in doubt] and slaves. But all other males are obligated, and even if they have an ugly trade, such as a manure collector, a smith and a tanner (Chagigah 4a). They clean their bodies and clothes and go up in front of God, may He be blessed, and are accepted like the rest of Israel. As a dirty soul is that which is disgusting about people in front of the Omnipresent, and not a craft - so long as it is done honestly. And one who transgresses it and appears in the courtyard on the first day of the festival and does not bring a sacrifice has violated a positive commandment. And he has also violated a negative commandment, as it is stated about this (Exodus 23:15), "and they shall not see My face empty-handed."

In situations in which such a loan is forbidden the prohibition is predicated upon the consideration that "one dare not strengthen the hands of transgressors" (ein maḥazikin yedei ovrei aveirah). The prohibition against performing acts included in this category is generally regarded as rabbinic in nature. The prohibition is designed to proscribe certain activities which are excluded from the ambit of the biblical prohibition against "placing a stumbling-block before the blind" by virtue of the absence of an intrinsic cause-and-effect relationship between the assistance rendered and the resultant transgression. Rabbi Gestetner, however, cites the statement of Rambam, Commentary on the Mishnah, Terumot 6:3, to the effect that the prohibition against such action is rooted in the biblical admonition, "Do not put your hand with the wicked" (Exodus 23:1).

That we not slaughter the lamb of the Pesach offering on the fourteenth of Nissan while chamets is still in our possession: That we not slaughter the lamb of the Pesach offering on the fourteenth of Nissan while chamets still be in our possession - until half of the day, as they, may their memory be blessed, expounded (Pesachim 5a),"[The word,] 'but,' divides" - as it is stated (Exodus 23:18), "Do not slaughter upon chamets the blood of my slaughtering." And the explanation of it comes [to tell us] not to slaughter the lamb of the Pesach sacrifice while chamets still exist in your possession. And this preventing is repeated in the Torah, with a different expression. And we have also understood that included in the explanation is that chamets not be with the one who slaughters it (Pesachim 13b) and not be with the one that sprinkles its blood and not be with the one that makes its fat smoke and not be with one of the assemblage that is counted upon it (Pesachim 63b).

To not leave the entrails of the Pesach sacrifice to stay overnight: Not to leave the entrails of the Pesach sacrifice until the morning, [such] that they not be sacrificed, and [so] become disqualified with this leaving over and become called notar (what is left over); as it is stated (Exodus 23:18), "and the fat of My festival offering shall not be left lying until morning." And the same is true of other portions to be burned in other sacrifices. And the language of Mekhilta d'Rabbi Yishmael 23:18 is "'The fat shall not be left lying' - the verse comes to teach that the fats are disqualified by lying over." And this preventing was already repeated in another place, as it is stated (Exodus 34:25), "and the sacrifice of the festival of Pesach shall not be left lying until morning."

The commandment of bringing the first-fruits: To bring the first-fruits to the Temple - and that is that we are obligated to bring there the first fruit that ripens on a tree and to give it to a priest. And not all trees are in this commandment from Torah writ, but rather only the seven species through which the Land of Israel is praised - and they are wheat, barley, the [fruit of the] vine, figs, pomegranates, olives and dates - as it is stated (Exodus 23:19), "The first fruits of your land you shall bring, etc." and the explanation comes that it is only stated about these seven fruits. And according to what it appears, it is in this way that they, may their memory be blessed, learned to say like this: Since no other fruits at all are mentioned in any place in the Torah besides these, and He, blessed be He, commanded us to bring undifferentiated first-fruits from our land, it follows that it is about the fruits that He informed us about in the Torah that are in the Land of Israel and through which it is praised, that He commanded us. And it is possible that our Rabbis, may their memory be blessed, have another [indication] from the verse, or maybe they are words of transmission. And so was it their way to bring them, that those close to Jerusalem would bring them soft (fresh) and those far would dry them [first].

To not cook meat in milk: That we not cook animal meat in animal milk, as it is stated (Exodus 23:19), "you shall not cook a kid in its mother's milk." And the explanation came (Chullin 113a) that it is not specifically a kid, but rather all meat of an animal is implied - as the expression, "kid" is an expression that only [applies to] animal meat. And the verse [chose] the expression, "kid," since meat is a soft thing, like a kid. And how is it that you learn like this? From that which you find in several places in the Torah where it is written, "kid," and it was necessary [for the Torah] to explain, "a goat kid." Behold, you have learned [from this] that in a place where is is stated only, "kid," it is not specifically a goat kid, but rather all animal meat like it is implied.

To not make a covenant with the seven nations and likewise with any worshiper of idolatry: That we not make a covenant, meaning to say that we promise our friendship to the bad nation of heretics - which are the seven nations in the Torah which were holding our land before our arriving there, and they are the Hittite, the Emorite, etc. - as it is stated (Exodus 23:32), "You shall not make a covenant with them and their gods." [This] means to say that we should not make peace with them and leave them to worship idolatry.

To not have worshipers of idols dwell in our land: To not have worshipers of idolatry dwell in our land, as it is stated (Exodus 23:33), "They shall not dwell in your land, lest they cause you to sin against Me."

The commandment of the land resting on the seventh year: To cease work on the land on the seventh year, as it is stated (Exodus 34:21), "from plowing and from reaping you shall rest." And the explanation comes that it is speaking about the seventh year, that we were commanded not to be occupied with work on the land at all. And this commandment is repeated in its stating in another place (Leviticus 25:5), "it shall be a year of complete rest for the land." And so [too,] "the land shall observe a Shabbat for the Lord" (Leviticus 25:2). And above I have already written all of its content completely (Sefer HaChinukh 84) in the Order of Eem Kesef Talveh et Ami in the commandment of "But in the seventh you shall let it rest and lie fallow" (Exodus 23:11) - even though its place is here.

“Love ye therefore the stranger” (Deut. 10:19). We are enjoined to love the individual who enters under the wings of the Divine Glory¹The proselyte. in order to fulfill all the commandments of the Torah. In thirty-six places the Torah cautioned us concerning love for the proselyte, not to wrong them²Baba Metzia 59b. either monetarily or through words. Greater is their love and more precious are they before God than His love for Israel.³Midrash Rabbah, ed. Horeb, Numbers, Chapter VIII, p. 43; also Mid-rash Tanhuma, ed. Horeb, Lech L’cho, p. 52. It is a parable of two people, one man loves the king and the other, the king loves him. Who is worthier? Surely, he whom the king loves. And thus is it comparable, Israel loves the Holy One, blessed be He, and the Holy One, blessed be He, loves the proselyte, for it is written, “And loveth the stranger, giving him food and raiment” (Deut. 10:18). For this reason it is incumbent upon us to love those whom the kings loves, and it is therefore written, “Love ye therefore the proselyte.”

And that which they, may their memory be blessed, also said (Ketuvot 28a) that with testimony about a signature, a relative is trusted to testify about the writing of his relative, that he recognizes it - and he combines with another to validate the deed. And with this testimony a man is trusted when he is an adult to testify and say, "When I was small, I saw the writing of my father - or my brother - and I recognize it now, that it is the one that I saw." And that which they said that ten creatures are disqualified for testimony from Torah writ, and like I wrote above in the commandment of "do not place your hand with an evildoer to be a witness" (Sefer HaChinukh 75). And so [too,] one who is not [involved] in Scripture, nor in Mishnah, nor in the way of the world (productive work) is disqualified by the words of [the Rabbis], as there is an assumption about him that he is an evildoer - and behold, it is written (Exodus 23:1), "do not place [...] an evildoer to be a witness." But if he has [involvement] in the way of the world and is involved in some commandments, we accept his testimony, even though he is an ignoramus. You will be found to say that any Torah scholar is assumed to be fit until he is disqualified and [any] ignoramus is assumed to be disqualified until his status is established with us for the good. And so [too,] the most debased men are disqualified [rabbinically], such as those that eat in the marketplace in front of everyone. And included in the debased (Sanhedrin 26b) are those that consume the charity of gentiles publicly. And the rest of its details are elucidated in Sanhedrin and in Shevuot (see Mishneh Torah, Laws of Testimony 1).

The Arrangement of Buying and Selling (ie. How One Should Conduct Themselves in Business). Containing 1 Se'if:
Afterwards he should go to his work because any Torah that does not have work with it will end up becoming null and will cause sin because the poverty will remove from him knowledge of his Creator. Nevertheless, he should not make his work primary, but rather temporary, and his Torah permanent; and [through this] both will be sustained. He should do business honestly and be careful not to mention the name of Heaven in vain, because in every place where the mention of God's name [in vain] is found, death is found. And he should be careful not to take an oath, even in truth, because 1,000 cities belonged to King Yannai and all of them were destroyed because they took oaths, even though they kept them. And he should be careful from partnering with the gentiles, for perhaps [the gentile] will be obligated to take an oath and [the Jew] will violate [the transgression of] "[The names of other gods] should not be heard on your lips." Rem"a: And some are lenient with partnering with gentiles these days because the gentiles nowadays do not take an oath by idols. And even though they mention their foreign god, nevertheless their intention is to the Creator of heaven and earth, except that they associate the name of Heaven with other forces. And we do not find that there is in this [a violation by the Jew of] "Before a blind person you shall not place a stumbling block," because the gentiles are not warned regarding partnership [of God with other forces]. (Ra"n - the end of the first chapter of Avodah Zarah; Rabbeinu Yerucham - netiv 17, chelek 5; Tosafot - beginning of the first chapter of Bechorot). And to do business with them without partnering, all agree is permitted, except on the day of their festivals. (Hagahot Maimoni - first chapter of the Laws of Idol Worship). And see Yoreh Deah on the Laws of Idol Worship chapter 147.)

That He prohibited us from going up on pilgrimage without there being a sacrifice with us, such that we sacrifice it there. And that is His, may He be exalted, saying, "and none shall appear before Me empty-handed" (Exodus 23:15). And in any event, there should be a burnt-offering and peace-offerings. And the regulations of this commandment have already been explained in Tractate Hagigah. However, women are not obligated in this commandment. (See Parashat Ki Tissa; Mishneh Torah, Festival Offering 1.)

He prohibited us from ignoring a lost object. Rather we must take it and return it to is owners. And that is His saying, "you may not remain indifferent" (Deuteronomy 22:1). And we have already explained (Sefer HaMitzvot, Positive Commandments 204) about their saying in the Mekhilta (Sifrei Devarim 222:2) regarding the matter of a lost object, "We have found to learn that one transgresses a positive and a negative commandment." And the language of the Gemara (Bava Metzia 30a) is, "Returning a lost object is a positive commandment and a negative commandment." And in Mishneh Torah (Deuteronomy), He repeated the prohibition about this content, and the negative commandment appears in it. And that is His saying, "You may not observe your brother’s ox or his sheep straying." And in the Sifrei (Sifrei Devarim 222:2): "'You may not observe' - that is a negative commandment. And earlier, He says, 'If you encounter, you must surely return' (Exodus 23:4) - that is a positive commandment." And the regulations of this commandment have already been explained in the second [chapter] of [Bava] Metzia. (See Parashat Ki Tetzei; Mishneh Torah, Robbery and Lost Property 11.)

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.)

That He prohibited the judge - not to listen to one of the disputants when it is not in front of his [adversary]. And that is His saying, "You must not carry a false rumor" (Exodus 23:1). For usually the words of a diputant that are not in front of his [fellow] dipuatant are false. And He warned the judge from listening to those words, so that the image [created] by these words - that have no uprightness and have no truth to them - do not enter his soul. And the language of the Mekhilta (Mekhilta d'Rabbi Yishmael 23:1:1) is, "'You must not carry a false rumor' - that is a prohibition to a judge not to hear the words of one disputant until the other is with him; and it is a prohibition to the disputant not to state his case to the judge until his fellow [dipuatant] arrives." And to prohibit this very same content, He said, "Keep far from a false matter" (Exodus 23:7) - as it is explained in the fourth [chapter] of Shevuot (Shevuot 31a). And they said that also included in this negative commandment is the prohibition against one who speaks evil speech, one who accepts it and one who testifies with false testimony, as it is explained in Makkot (Makkot 23a). (See Parashat Mishpatim; Mishneh Torah, The Sanhedrin and the Penalties within their Jurisdiction 21.)

And I will also inform you, my son, a little of what they, may their memory be blessed, said about the matter of the intermediate days of the festival - and they are the middle days that are in Pesach and Sukkot - which they, may their memory be blessed - [found to be] forbidden in the doing of work by the Torah. However which work is forbidden on them and which is permitted did not appear explicitly in the Torah. Nonetheless, the Torah still forbade work on them, such that the Sages learned the thing from Scripture in the second chapter of Chagigah 18a. Some of them learned the thing from the verse of "The holiday of matsot you shall guard" (Exodus 23:15) - and that is Rabbi Yeshayah. As it was implied for him, "You shall guard all of the days of the holiday of matsot from the doing of work" - but not that they all be the same in the work [that is prohibited]. And Rabbi Yochanan [reasons that] it comes from an a fortiori (kal vechomer) argument there from the first and seventh [days], that do not have holiness [both] before them and after them, etc.

And [so] we learn, "destitution, destitution," to arrange things with a debtor in the way that we arrange things with appraisals, and we should not hesitate about the words of Eliyahu. And so did all the Geonim and Rabbenu Alfasi rule. And even though Rabbi Yaakov in the name of Rabbi Pedat, and Rabbi Yirmiya in the name of Ilfa, said that we do not arrange things for a debtor, in the way of it being obvious in the Gemara - [nonetheless] we do not hesitate about the words of Eliyahu. And even though we found that Rabbenu Tam wrote like the opinion that we do not arrange things, and his proofs are in his book, 'after the many do we incline.' And Rambam, may his memory be blessed, also ruled like the other Geonim that we arrange things (Mishneh Torah, Laws of Creditor and Debtor 1:7). And nonetheless, he wrote that the agent of the court only leaves the debtor items that are essential to him, such as a bed and bedding and that which he wears. And it appears that what forced the Teacher to say this is when he saw in this chapter [entitled] Mekabel regarding an agent of the court: That they said in the Mishnah (Bava Metzia 113a), "If he had two items, he takes one and returns one - the pillow at night, and the plow during the day." And they did not list tools of the trades. But from what it appears, this is certainly not a great compulsion [to rule as he did]. As since it is established to us that we arrange things with him in the way that we arrange things with appraisals, they are the same in every matter. And even though the Mishnah did not enumerate them, this is no matter; as it is not like a peddler that enumerates [all of his wears] and repeats [them] in every place. [Rather] it mentioned pillow and plow, and the law is the same for everything that is fitting to leave him. And the principle of the matter, according to that which seems - and that which is agreed by all the savants of the world whose fame about Torah has been disseminated - is that we arrange things with a debtor exactly in the way that we arrange things with appraisals. And they have what to rely upon from the words of the Gemara and from that of Eliyahu - may he be remembered for the good - as we we have written.

One who suffered a bereavement and it was not known to him, — [the law is that] it is not obligatory that they inform him [thereof], even in [the case of] his father and/or mother [who died],³⁹M.K. 20a-b, derived from the case of R. Ḥiyya. supra par. 1, n. 11. also Naz. 44a, where it is reported that the father of R. Isaac died at Ginzak, and the son was informed about it three years later. and regarding such a one, [i.e., who does inform], it is said, 'And he that uttereth a slander is a fool';⁴⁰Prov. X, 17. and it is permissible to invite him to a feast of betrothal and marriage and [likewise to] every [type of] festivity, since he knows not thereof.⁴¹Hag. Maim. to Ebel VI on the authority of Rashi. A husband who knows that his wife suffered a bereavement of which she is unaware, is permitted to cohabit with her — P.Tesh. However, if he asks about him, one should not lie and say that he is alive,⁴²Mord. and Hag. Maim. In reporting a death one should phrase his statement in such a manner so as to convey a double meaning, i.e., there should be the possibility of interpreting his words both for life and death — TaZ. Cf. case of R. Ḥiyya supra par. 1, n. 11. On a Festival, however, one should not report a death, so as not to grieve the mourner which is not in keeping with the festive spirit of the Holiday — P.Tesh. for it is written, 'Keep thee far from a false matter.'⁴³Ex. XXIII, 7. Gloss: Nevertheless, in [the case of surviving] male children it is customary to inform [them thereof] so that Kaddish¹⁸ Glos. be recited, but in [the case of surviving] daughters it is not customary to inform them at all.⁴⁴MaHaRIW s. 13 — G. It is a religious duty to fast [on] the day that one's father or mother died,⁴⁵Kol Bo on the authority of R. Meir of Rothenberg and other Codifiers. By fasting a person will repent, investigate his conduct and improve it. This has a redeeming power for the parents. At the Afternoon Service (Minḥa) on the Yahrzeit day, one who fasts should recite the עננו prayer (v. Siddur) as in the case of any other fast day. and one fasts on the day of death and not on the day of burial,⁴⁶MaHaRIW s. 121 and Isserlein s. 296 and Later Codifiers — G. unless one was present at the burial and not at the death.⁴⁷On tradition from a distinguished Elder, R. M. Landau — G. The anniversary of death (Yahrzeit) and the fast are always observed on the day of death — TaZ. If, however, three or four days elapsed between death and burial, the law is that the first year one observes the Yahrzeit on the day of burial and every succeeding year on the day of death —ShaK. On the Yahrzeit day a lamp is lit. If one observes Yahrzeit for both parents on the same day, two lamps or candles are lit — Sefer Amarkol. For one who died at twilight (בין השמשות), one observes the Yahrzeit on the following day — Resp. Minḥath Elazar. If one who observes Yahrzeit on the Sabbath, forgot to light the Yahrzeit lamp before the advent of the Sabbath, — if he reminds himself on the eve of the Sabbath at twilight, he may instruct a non-Jew to light it for him — M.Abr. (O.Ḥ. § 261, n. 6). One may light a Yahrzeit lamp on a Holiday — Ketab Sofer. One who is in doubt whether the Yahrzeit should be observed on the fourth or the fifth day of the month, — the law is that if he has other brothers elsewhere who know the exact day when Yahrzeit falls (it is understood that he is unable to contact them in order to determine the correct day), he should observe the Yahrzeit on the fourth day (i.e., the first doubtful day). But it there is no one else in the family to observe the Yahrzeit, he must observe both days — Ḥatam Sofer. If this day occurred on a day during which Taḥanun¹⁸ Glos. is not recited, one does not fast at all.⁴⁸Thus also if the Yahrzeit day falls on the day when one’s child is to be circumcised, the father or the Sandek or the Mohel, who may be observing Yahrzeit, do not fast. Likewise, in the case of the redemption of a first-born child, the father or the Kohen who may be observing Yahrzeit, do not fast — O.Ḥ. ibid. par. 9. TaZ and Sha‘are Tesh. ibid. So too, a groom during the seven days of his wedding-feast, does not fast on the Yahrzeit day. However, one observing Yahrzeit is not permitted to eat at the feast held on the completion of a Talmudical tracate (סיום) — ShaK. One who does not know the day of his father’s or mother’s death, should select a certain day during the year on which to observe the Yahrzeit and fast, but he may not encroach upon the rights of others with respect to the Kaddish — M.Abr. (O.Ḥ. § 568, n. 20). If one who has to observe Yahrzeit is unable to say Kaddish, e.g., when he is on the road, he may recite Kaddish at the evening service (Ma‘arib) following the Yahrzeit day — Matte Efrayyim. If at the place of death it was already night when the person died and at the place of the near-of-kin it was still day, the Yahrzeit day is fixed according to the place of death — Sh.M.B. contra Kol Bo(G). Cf. supra par. 1, n. 2. If they died during [the month of] Adar⁴⁹In an ordinary year. and the year was a leap year,⁵⁰e., the following year or years when Yahrzeit is observed. Thus M.Abr. — the fundamental principle is to fast [and observe Yahrzeit] during [the month of] Adar I,⁵¹T. ha-Deshen s. 294 and R. Judah Minẓ — G. although there are some who differ with [this], — yet, thus is the fundamental principle. However, if they died in a leap year during Adar II, one likewise fasts in a [subsequent] leap year during Adar II⁵²Ibid. — G. e., in a subsequent leap-year he fasts during the Adar that death occurred, and in the following ordinary years he fasts during Adar. If the death occurred during an ordinary year, then in a subsequent leap-year he fasts during Adar I and during Adar II he recites the Kaddish but does not take precedence over others in leading the services etc. — ShaK, P.Tesh., M.Abr. The month of Ḥeshvan is sometimes full (i.e., it consists of thirty days in which case the first of the month (Rosh Ḥodesh) of Kislev, following, consists of two days, of which the first day of Rosh Ḥodesh is the thirtieth day of Ḥeshvan and the second day of Rosh Ḥodesh is the first day of Kislev) and sometimes the month of Ḥeshvan is defective (i.e., it consists of twenty-nine days, in which case, Rosh Ḥodesh Kislev, following, is observed only one day). Consequently, if one dies on Rosh Ḥodesh Kislev when Rosh Ḥodesh is observed only one day, — the law is that in a subsequent year when Rosh Ḥodesh Kislev consists of two days, the Yahrzeit should be observed on the second day of Rosh Ḥodesh, which is the first day of the month of Kislev. However, if one died on the first day of Rosh Ḥodesh Kislev when Rosh Ḥodesh consisted of two days, the question is — when should one observe Yahrzeit in a subsequent year when Rosh Ḥodesh Kislev consists of one day only? Should one observe the Yahrzeit on the twenty-ninth day of Ḥeshvan, since the death took place on the last day of Ḥeshvan, or do we say that since in matters pertaining to vows (v. end of Gloss anon) we follow the language of the people, he should observe Yahrzeit on Rosh Ḥodesh Kislev? — The following procedure should be adopted: If during the first year following the death, Rosh Ḥodesh Kislev is observed for one day only, the Yahrzeit should be observed on the twenty-ninth day of Ḥeshvan. Thus also whenever the month of Ḥeshvan is defective, then on the following day (i.e., Rosh Ḥodesh Kislev), if there are no mourners in the Synagogue, he should also recite the Kaddish and lead the services. But if during the year following the death, Rosh Ḥodesh Kislev consists of two days, consequently, the Yahrzeit becomes fixed for Rosh Ḥodesh Kislev and he should observe it thus every subsequent year, even when Rosh Ḥodesh Kislev consists of one day. The same principle applies to other months which are sometimes full and sometimes defective — M.Abr. Since Rosh Ḥodesh Tebeth is sometimes observed one day, in which case the sixth day of Ḥanukkah is the first of Tebeth, the seventh day, — the second of Tebeth and the eighth day, — the third of Tebeth; and sometimes Rosh Ḥodesh Tebeth consists of two days, i.e., the sixth and seventh day of Ḥanukkah, in which case the seventh day of Ḥanukkah is the first day of Tebeth and the eighth day, — the second day of Tebeth, — consequently, one who observes Yahrzeit during these days should not err by counting the days of Ḥanukkah, but one must always count the days of the month — M.Abr. and O.H. § 568, 8. supra § 391 that one should not eat at a feast on the night of [which the following] day is the death anniversary of one's father or/and mother.⁵³ supra § 391, 3, Gloss n. 38. [If] this fast falls on the eve of the Sabbath, the law is as [on] other fastday[s]. O.H. § 249. In any case, — [the law is that] if the first time one fasted the whole day, one should adopt this practice all the days of his life.⁵⁴For it is then regarded as a vow. Hence, he must always fast on that day. Should one, however, be ill or should there be any other reason which prevents him from observing the fast-day, he must first be released from his vow. But if, prior to observing the first fast-day, one explicitly stated that he fasts on the condition that this should not be regarded as a vow for the following year, he does not require any release (v. O.Ḥ. § 568 and Ḥ. Adam).

That we not profane our words from vows: That we have been prevented that we not change that which we obligate ourselves in speech (see Sefer HaMitzvot LaRambam, Mitzvot Lo Taase 157) - and even though it is without an oath. And these are vows - for example, a person will say [that] fruits of the world, or fruits of country x or y type of fruits are forbidden to him; and so too, [that] he will say his wife is forbidden to him; and similar to these things - that he is obligated to fulfill them. And about this is it stated (Numbers 30:3), "he shall not profane (yachel) his word." And they, may their memory be blessed, explained (Sifrei Bamidbar 153:4), that he should not make his word non-sacred (chullin), meaning to say, that he obligate something on himself and not fulfill it. And the language of the Gemara [in] Shevuot 20b [is that] they, may their memory be blessed, said [times that a person say] konam (a pledge to bring a sacrifice), he [is liable to] transgress because of "he shall not profane his word." And so [too,] with anything that a man vow for a sacrifice or upkeep of the [Temple] or charity or for the synagogue or similar to them, he [is liable to] transgress because of "he shall not profane his word." But with other matters - such as one who vows something to his fellow or who says, "I will" or "I will not do thing x" - even though it is ugly, and it is only small-souled people who do it, he does not transgress because of "he shall not profane his word"; only in the way that we have written. However, about it all is it stated in the Torah (Exodus 23:7), "Keep far from a false thing." And Ramban, may his memory be blessed, wrote that they are two separate commandments, vows to the Elevated realm and vows of utterance, and as we will write below in the Order of Ki Tetseh in the commandment of fulfilling what comes out of the lips (Sefer HaChinukh 575).

The commandment of prayer: To serve God, may He be blessed, as it is stated (Deuteronomy 10:20), "and you shall serve Him." And this commandment was repeated several times, as it is stated (Exodus 23:25), "And you shall serve the Lord, your God"; and in another place, it states (Exodus 11:13), "and to serve him with all of your hearts." And Rambam, may his memory be blessed, wrote (Sefer HaMitzvot LaRambam, Mitzot Ase 5), "Even though this commandment is from the general commandments" - meaning to say that it includes all of the Torah, since the service of God includes all of the commandments - "there is also a specific [commandment] within it, and that is that God commanded us to pray to Him. And it is as they said in Sifrei Devarim 41:25, '"To serve Him with all of your hearts" What is the service that is in the heart? That is prayer.' And in the teaching of Rabbi Eliezer the son of Rabbi Yose HaGalili they said, 'From where [do we know] that the essence of prayer is among the commandments? From here, "The Lord, your God, shall you fear, and you shall serve Him."'"

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.'"

To not prophesy in the name of idolatry: To not prophesy in the name of idolatry - for example, he says that idolatry x commanded to worship it, and promises a reward for its worshipers and affrights the one who does not serve it with a punishment; as the prophets of Baal and Asherah would say, and like is mentioned in the books of the Prophets. And likewise included in this is if he says that God commanded to worship idolatry x. And the Scripture does not come about this with a specific clear warning, however the punishment of the one who prophesies in the name of idolatry is clear in the Scriptures - that he is liable for death, as it is stated about this (Deuteronomy 18:20), "and the one who speaks in the name of other gods, that prophet shall die." And this death is strangulation, as we wrote adjacently. And we have already known the principle that they, may their memory be blessed, taught us, "He does not punish unless He warned." And hence we shall say that the warning of this matter was included in "and the name of other gods shall you not mention" (Exodus 23:13), that we wrote in Parshat Mishpatim as a negative commandment of it own about another matter (Sefer HaChinukh 86). And it is not impossible for one negative commandment to prevent several things - and its law is not like the law of a general negative commandment, since the punishment of each and every matter is elucidated. This is the opinion of Rambam, may his memory be blessed (in the Sefer HaMitzvot LaRambam, Shoresh 14 at the end).

To return a lost item to an Israelite: To return a lost item to its owners, as it is stated (Deuteronomy 22:1), "you shall surely return them to your brother." And in the explanation, they, may their memory be blessed, said (Bava Metzia 30a) [that] returning a lost item is a positive commandment. And this commandment is repeated in another place in the Torah, as it is stated (Exodus 23:4), "When you encounter your [enemy’s] ox, etc., you shall surely return it to (your brother)."

And this commandment is practiced at the time that the Temple is in existence, but only in the Land of Israel - as it is stated (Exodus 23:19), "The first fruits of your land you shall bring to the House of the Lord, your God" - by males, but not by females, as we have said. And rabbinically, they would bring first-fruits at the time of the [Temple] from the cities of Sichon and Og and from Syria. And one who transgresses this and brings first-fruits, but does not recite over them at that time, has violated this positive commandment.