Ki Tetze 2nd Portion

Various Laws

22 If someone guilty of a capital offense [the rationale of the juxtaposition: If the rebellious son is pitied by his parents, in the end he will become corrupt and commit transgressions for which he will be sentenced to death by the court], is put to death and their body is exposed [i.e., his body, after stoning] on a pole,

Rashi’s Commentary

If someone guilty of a capital offense—The juxtaposition of these sections (this and that of the rebellious son) tells us that if father and mother spare him (the rebellious son), he will in the latter end turn to mischief and commit sins for which he will become liable to the death penalty by the court (cf. Midrash Tanchuma, Ki Tetze 1).

Sifrei Devarim 221:1

If a man guilty of a capital offense is put to death and their body is exposed on a pole—A man is hanged (i.e., suspended after death) and not a woman. R. Eliezer says: A woman, too, is hanged.

23 you must not leave the body hanging on the pole overnight. Be sure to bury it that same day, because anyone who is [his remaining] hung [man being God’s image, and the children of Israel, his sons] on a pole is under God’s curse. You must not desecrate the land the Lord your God is giving you as an inheritance.

Sanhedrin 46b:8

The mishna teaches that everyone, not only an executed transgressor, must be buried on the day of his death, if that is at all possible. Rabbi Yoḥanan says in the name of Rabbi Shimon bar Yoḥai: From where is it derived that one who leaves his deceased relative overnight without burying him transgresses a prohibition? The verse states: “Be sure to bury it” (Deu 21:23), doubling the verb for emphasis. From here it is derived that one who leaves his deceased relative overnight without burying him transgresses a prohibition.

1 If you see your fellow Israelite’s ox or sheep straying, do not ignore it but be sure to take it back to its owner.

Bava Metzia 30a:14

The mishna teaches: If a person found a sack or a basket or any other item that it is not his typical manner to take and carry because it is beneath his dignity, he shall not take it. The Gemara asks: From where are these matters derived? It is as the Sages taught in a baraita: It is stated with regard to the return of a lost item: “If you see your fellow Israelite’s ox or sheep wandering, do not disregard it; take it back to its owner” (Deu 22:1). The tanna explains that the phrase “disregard it” means that there are occasions in which you may disregard lost items and there are occasions in which you may not disregard them.

Bava Metzia 30b:15

MISHNA: Which is the item that is considered lost property? If one found a donkey or a cow grazing on the path, that is not lost property, as presumably the owners are nearby and are aware of the animals’ whereabouts. If one found a donkey with its accoutrements overturned, or a cow that ran through the vineyards, that is lost property. In a case where one returned the lost animal and it fled, and he again returned it and it fled, even if this scenario repeats itself four or five times, he is obligated to return it each time, as it is stated: “If you see your fellow Israelite’s ox or sheep wandering, do not disregard it; take it back to its owner” (Deu 22:1).

Rashi’s Commentary

If you see . . . do not ignore it—“If you see it . . . but not ignore it!” (i.e. if you see it do not ignore it), this is the plain sense of the verse. Our Rabbis, however, said that although the verse clearly means that one must not ignore it, nevertheless, the verse suggests: There are times when one is, in fact, permitted to ignore them for example, if he is a priest, and the animals have wandered into a cemetery, where priests may not enter, or if he is an honored sage, and it it is beneath his dignity to lead animals or carry packages in public places—he may “ignore” it, and he is not obligated to return it to his brother (Bava Metzia 30a; Sifrei Devarim 225:4).

Ignore it—i.e. one, as it were closes his eyes tight as though one does not see it.

2 If they do not live near you or if you do not know who owns it, take it home with you and keep it until they come looking for it [when he comes to claim it, to ascertain that his claims are legitimate]. Then give it back. [It must constitute a “return;” do not feed it as much as it is worth and then claim that amount from the owner. But if its work can compensate for its food, then let it work; if not, sell it and give that money to the owner.]

Bava Metzia 27b:4

The Gemara suggests: Come and hear proof from a mishna (28b): “If they do not live near you or if you do not know who owns it, take it home with you and keep it until they come looking for it. Then give it back” (Deu 22:2). Would it enter your mind that he would give the lost item to him before he claims it? How can the finder return it if he does not know the identity of the owner? Rather, the verb come looking is not referring to the claim of the owner; it is referring to the scrutiny performed by the finder. Scrutinize him to determine whether the claimant is a swindler or whether he is not a swindler. Only then may you return the lost item to him.

Bava Metzia 28a:2

Rather, Rava said: Identification of an item on the basis of distinguishing marks is by Law, as it is written: “If they do not live near you or if you do not know who owns it, take it home with you and keep it until they come looking for it. Then give it back” (Deu 22:2). Would it enter your mind that he would give the lost item to him before he claims it? How can the finder return it if he does not know the identity of the owner? Rather, the verb come looking is not referring to the claim of the owner; it is referring to the scrutiny performed by the finder. Scrutinize him to determine whether the claimant is a swindler or whether he is not a swindler. Only then may you return the lost item to him. What, is it not that the one who claims the lost item proves that he is not a swindler on the basis of distinguishing marks that he provides? Rava affirms: Conclude from it that identification of an item on the basis of distinguishing marks is by Law.

Bava Metzia 28b:5

MISHNA: If a claimant accurately stated what type of item the lost item that was found by another is, but did not state, i.e., describe, its distinguishing marks, the finder shall not give it to him. And in the case of a swindler, even though he stated its distinguishing marks, the finder shall not give the lost item to him, as it is stated: “If they do not live near you or if you do not know who owns it, take it home with you and keep it until they come looking for it. Then give it back” (Deu 22:2). Would it enter your mind that the finder would give it to him before he claims it? How can the finder return it if he does not know the identity of the owner? Rather, the verb come looking is not referring to the claim of the owner; it is referring to the scrutiny performed by the finder. You shall not return the lost item until you scrutinize your brother to determine whether he, the claimant, is a swindler or whether he is not a swindler.

Bava Metzia 28b:13

MISHNA: If one finds any living being that works and generates enough revenue to cover the costs of the food that it eats, it shall work and eat while in the finder’s possession. And any living being that does not work but it does eat shall be sold, as it is stated: “Take it home with you and keep it until they come looking for it. Then give it back” (Deu 22:2), indicating that the finder must see how best to return it to him. Since the owner must repay the finder for his expenditures, if feeding the animal costs more than its value, the finder’s keep-ing the animal in his possession will prevent the owner from recovering it.

Bava Metzia 28b:21

The mishna teaches: And any living being that does not work but it does eat shall be sold. The Sages taught in a baraita: The verse states: “Then give it back” (Deu 22:2), indicating that the finder must see how best to return it to him, meaning that one shall not feed the value of a calf to the lost calves that he is tending, nor the value of a foal to the lost foals that he is tending, nor the value of a goose to the geese that he is tending, nor the value of a rooster to the roosters that he is tending. Were the finder to do so, ultimately, the owner would receive nothing.

Rashi’s Commentary

And keep it until they come looking for it—But would it ever enter your mind that one could give it back before he enquires for it (Scripture distinctly states that you do not know to whom the animal belongs)?! But the meaning of the verse is that you must keep the animal until you make diligent enquiries of him that he should not be a fraudulent claimant (Bava Metzia 27b, 28a; cf. Sifrei Devarim 223:4).

Then give it back—It is necessary that there be something left in it to give back—that it (the animal) should not eat in your hometo its own value, and you claim this from him (in which case there is no actual restoration of what has been lost). From here, they (the Rabbis) derived the law: Whatever works and requires food (as, for instance, oxen, etc., the cost of whose food is set off by the value of its labour) should work and eat; whatever does not work but requires feeding (as, for instance, sheep) should be sold and the money restored to the man who lost it (Bava Metzia 28b).

3 Do the same if you find their donkey or cloak or anything else they have lost. Do not ignore it.

Bava Metzia 2a:7

The Gemara challenges this explanation: But how can you say that what the term: If you find anything, means is actually: I saw it? But didn’t Rabbenai say in interpreting the verse: “Do the same if you find anything else they have lost” (Deu 22:3), that “if you find anything” indicates that it came into his possession? The term find in the Law refers exclusively to a situation where the item is in the possession of the finder.

Bava Metzia 22b:5

The Gemara suggests: Come and hear a proof from that which Rabbi Yoḥanan says in the name of Rabbi Yishmael ben Yehotzadak: From where is it derived with regard to a lost item that the river swept away that it is permitted for its finder to keep it? It is derived from this verse, as it is written: “Do the same if you find their donkey or cloak or with every item they have lost” (Deu 22:3). The verse states that one must return that which is lost from him, the owner, but is available to be found by any person. Excluded from that obligation is that which is lost from him and is not available to be found by any person; it is ownerless property and anyone who finds it may keep it.

Bava Metzia 27a:4

GEMARA: When the mishna says that the cloak was included in the generalization that one must return all of these items, in what generalization is it included? Rava said: It is included in the generalization: “Do the same if you find their donkey or cloak or with every item they have lost. You may not disregard it” (Deu 22:3).

Bava Metzia 31a:2

Rava says that the verse: “Do the same with every item they have lost” (Deu 22:3), serves to include an obligation to protect your brother from the loss of his land. Rav Ḥananya said to Rava: There is a baraita that is taught that supports your opinion. If one saw water that is flowing and coming to inundate another’s field, he must establish a barrier before the water in order to preserve the field.

Rashi’s Commentary

Do not ignore it—i.e. You must not cover your eyes, pretending not to see it.

Sifrei Devarim 224:1

And thus shall you do with their donkey—It works and it eats.

4 If you see your fellow Israelite’s donkey or ox fallen on the road, do not ignore it. Help the owner [if he himself does not care to do so, you are exempt] get it to its feet [raise the animal’s fallen load].

Rashi’s Commentary

Help the owner get it to its feet—i.e. with the owner. But if he goes aside and sits down and says to him, “Since it is a duty for you to load it, if you want to load, go ahead and load!”—I am not commanded to do it, he is exempt from doing it (cf. Bava Metzia 32a).

Get it to its feet—This refers to the duty of loading—to re-load the burden that fell from it.
If you see your fellow Israelite’s donkey or ox fallen on the road, do not ignore it. Help the owner get it to its feet.

5 A woman must not wear men’s clothing [making her appear like a man, so that she can mix with them, this being a ploy for promiscuity], nor a man wear women’s clothing [in order to mix with them], for the Lord your God detests anyone who does this [the Law forbade only clothing which leads to “abomination”].

Nazir 59a:2

The Gemara asks: And what does the first tanna, who holds that the prohibition is by rabbinic law, learn from this verse: “Nor a man wear women’s clothing?” The Gemara answers: He requires it for that which is taught in the baraita, where it states: “A woman must not wear that which pertains to a man, nor a man wear women’s clothing, for the Lord your God detests anyone who does this” (Deu 22:5). What is the meaning when the verse states this? If it teaches only that a man may not wear women’s clothing, and a woman may not wear men’s clothing, it is already stated in explanation of this prohibition that “the Lord your God detests it,” and there is no abomination here in the mere act of wearing a garment.

Rashi’s Commentary

A woman must not wear men’s clothing—So that she look like a man, in order to consort with men, for this can only be for the purpose of adultery (unchastity) (cf. Nazir 59a; Sifrei Devarim 226:1).

Nor a man wear women’s clothing in order to go and stay unnoticed amongst women. Another explanation of the second part of the text is: it implies that a man should not remove the hair of the genitals and the hair beneath the arm-pit (Nazir 59a).

For the Lord your God detests anyone who does this—This implies that the Law forbids only the wearing of a garb that leads to abomination (unchastity) (cf. Sifrei Devarim 226:1).
A woman must not wear men’s clothing, nor a man wear women’s clothing, for the Lord your God detests anyone who does this.

Sifrei Devarim 226:1

A woman must not wear a man’s vestment—What does Scripture come to teach us? If that she should not wear colored clothing, is it not written (Ibid.) “for the abomination, etc.?” And this is not an abomination. It means, rather, that a woman should not wear what a man wears and go among the men (for licentious purposes), and a man should not wear colored clothing and go among the women.

6 If you come across a bird’s nest beside the road [this excludes what is already at hand (i.e., domesticated fowl)], either in a tree or on the ground, and the mother is sitting on the young or on the eggs, do not take the mother with the young.

Chullin 139b:6

If the nest of a bird chance before you—What do we learn to say from here?

Rashi’s Commentary

If you come across a bird’s nest—This excludes that which is always ready at hand (Chullin 193a; Sifrei Devarim 227:1).

Do not take the mother so long as she is sitting on the young.

Sifrei Devarim 227:1

If you come across a bird’s nest—To exclude what is normally found there.

7 You may take the young, but be sure to let the mother go, so that it may go well with you and you may have a long life [a fortiori, the granting of reward for the observance of more difficult commands].

Bava Metzia 102a:23

And now that Rav Yehuda says that Rav says: It is prohibited to acquire the eggs as long as the mother bird is upon them, as it is first stated: “Let the mother go” and only then: “You may take the young” (Deu 22:7), even if you say that the eggs fully emerged and fell into his courtyard, he will not acquire them, because in any case in which a courtyard owner is able to acquire an item by himself,his courtyard can effect acquisition of it for him, but in any case in which he is unable to acquire an item by himself, his courtyard cannot effect acquisition of it for him either.

Chullin 139b:7

Since it is stated (Deu 22:7), “You may take the children, but be sure to send the mother”—it is possible that he should go seek in the mountains and hills so that he find a nest.

Rashi’s Commentary

So that it may go well with you and you may have a long life—If in the case of an easy command which involves no monetary loss, Scripture states “Do this so that it may go well with you and that you may have a long life,” it follows à fortiori that this at least will be the grant of the reward for the fulfilment of commands which are more difficult to observe (Chullin 142a).

Sifrei Devarim 228:1

Be sure to let the mother go—This is a positive commandment. If he sent her away and she returned—even four or five times—he is obligated to continue sending her, it being written “Be sure to send.” But if he sent her and she returned to his hand, he is exempt from sending her again.

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