Rabbi Bernie Fox
The Use of a Ring in Betrothal
When a man takes a woman and has relations with her and
hates her… (Devarim 21:13)
This pasuk introduces the mitzvah of kiddushin. This mitzvah requires that marriage be
preceded by a betrothal – kiddushin.
The betrothal is accomplished through a formal kinyan – agreement
– between the man and woman. This kinyan
can take various forms. One form is kesef. This consists of transmittal of money or an
object of value. The man gives the woman
the object. He explains to the woman
that through this transmittal he intends to betroth her. The woman’s acceptance of the money or
object signifies her agreement to the kiddushin. Once the betrothal is completed, the woman
is considered the wife of the man. Any
subsequent affair is considered an act of adultery.
In modern times, the sole means of betrothal that we employ is the kinyan
of kesef described above.
According to halachah, any object of value may be used for this kinyan. However, the universal custom is for the man
to give the wife a ring or marriage band.
What is the reason for this custom?
Sefer HaChinuch explains that the ring is an especially appropriate object
for this kinyan. Kiddushin
is more than an agreement. The kinyan
affects a change in the legal status of the woman. With the completion of kiddushin, the woman is no longer
single and unattached. She is now the
wife of the man. This change of status
has important implications in halachah.
She is prohibited to enter into sexual relations with any other
man. These relations are
adulterous. The ring effectively
represents this concept. The ring is
placed upon the woman’s finger. A
visible change is affected. This
physical, visual change in the woman represents and is consistent with the
legal change affected by the kiddushin.[1]
The
Right of the Firstborn to a Double Portion of his Father’s Estate
And it will be that on the day that he wills his property
to his sons, he may not give preference to the son of his beloved wife over the
firstborn son of his unloved wife.
(Devarim 21:16)
This pasuk discusses
the rights of a firstborn son. This son
inherits a double portion of his father’s property. In other words, when upon
the father’s death his estate is divided, the firstborn son receives a portion
that is double the value of the portions received by the other sons. A simple illustration will clarify this
law. A man dies and is survived by four
sons. His estate is divided into five
portions. The firstborn son receives
two of the portions – two fifths of the estate. Each of the other sons receives one fifth of the estate.
Our pasuk deals with
a special case. In this case, the
husband has two wives. One wife is
beloved to the husband. The second wife
does not have the same relationship with her husband. The firstborn son is the child of the less preferred wife. This son should receive the double portion. The other sons should receive a single
portion. However, the husband wishes to
interfere with the rule of inheritance.
He wishes to award the double portion to the son of the more beloved
wife and provide the other sons with a single portion. As a result, the firstborn son will receive
a single portion. The Torah prohibits
this manipulation. The firstborn son
must receive his double portion. His
right to this double portion cannot be transferred to the son of the more
beloved wife.
Rabbaynu Ovadia Sforno asks
a question. According to our pasuk
the father must respect the rights of the firstborn son. Yet, we see that the Avot – our
forefathers – seemed to have disregarded this rule. The most obvious example of this disregard involves Yaakov. Reuven was Yaakov’s firstborn son. His mother was Leyah. Reuven did not receive a double portion in
the Land of Israel. Yaakov gave this
double portion to Yosef. Yosef was the
son of Rachel. Rachel was Yaakov’s more
beloved wife. It seems that Yaakov
transferred the double portion due the first born to another of his sons. He violated the injunction in our pasuk! Furthermore, the Torah condones this
decision!
There are various answers
to this question. Sforno maintains that
Yaakov’s behavior and the Torah’s endorsement of his decision provide a
fundamental insight into our pasuk.
According to Sforno, the passage does not prohibit the father from
interfering with the normal pattern of inheritance. The father may show preference to a younger son at the expense of
the firstborn son. However, our pasuk
does restrict the circumstances in which this interference is permitted. It cannot be motivated by the father’s
preference of one wife over the other.
In other words, the father cannot discriminate against his firstborn
because of his relationship with the child’s mother.
Based on this
interpretation of the injunction, Sforno answers his question. Yaakov did not discriminate against Reuven
because of the son’s mother. Yaakov made his decision based upon his insight
into his sons. He concluded that Yosef
was more deserving of the special treatment normally accorded the firstborn.
This conclusion dictated that Yosef inherit a double portion in the Land of
Israel. This same analysis indicated
that Reuven should be deprived of this right.
Sforno explains that his
interpretation of our pasuk is supported by another passage. In Sefer Divrai HaYamim, it is stated that
Yosef received the portion of the firstborn because Reuven desecrated his
father’s bed.[2] Although the exact nature of Reuven’s
misdeed is unclear from this passage, this passage expressly states that the
transfer of the firstborn’s privileges from Reuven to Yosef was occasioned by
Reuven’s improper behavior. This
supports Sforno’s reasoning. The right
can be transferred from the firstborn to another son. However, this interference in the pattern of inheritance cannot
be occasioned by a preference of one wife over another. [3]
The Requirement
to Provide a Promp Burial Even for a Criminal
You should not hang his corpse from
a tree. Rather, you should bury it on
that day. For the hanging is a curse to
the L-rd. And you should not defile
your land, which Hashem your G-d, gives to you as a portion. (Devarim 21:23)
The Torah requires that the
departed receive immediate burial. Our pasuk
explains that this law applies even to a criminal executed by the courts. The criminal must receive a proper burial
within the day.
This command responds to
the argument that the body of the executed criminal should be prominently
displayed. What more vivid
discouragement can the courts provide to an individual considering a violation
of the Torah? We are commanded that
despite this consideration, the criminal must receive prompt burial. There are various explanations offered by the
commentaries for the application of this law to criminals. These authorities also dispute the
translation of the pasuk.
Maimonides explains that
the law is an expression of respect for humanity. Even a criminal is a member of the human race. As such, the body of the criminal must be
treated with dignity. Maimonides
translates the pasuk somewhat differently in order to accommodate his
explanation.
Rashi offers a fascinating
explanation of the law. He comments
that even a criminal is created in the image of Hashem. Therefore, the display of the criminal’s
body might reflect poorly on Hashem in who’s image the criminal was
created. This negative reflection on
Hashem must be minimized through legislating a prompt burial.
Rashi is making an
important point. At times we seem to be
surrounded by evil. The news is
dominated by demonstrations of humanity’s depravity. It may seem that the human race in inherently evil. This is not the case. We must always realize that every human
being is created in Hashem’s image.
This design provides us with the potential to do tremendous good. We have the ability and the free will to
choose a productive and meaningful life.
The criminal becomes engrossed in evil as a result of his or her own
choices. There is no innate disposition
which condemns humanity to evil.
Rashi maintains that for
this reason, we cannot allow the body of the criminal to remain hanging. We do not want to unduly emphasize the
human’s potential for evil. Instead, we
want to stress the opportunity available to every person to do good.[4]
Rashbam takes a completely
different approach to explaining the law and translating the pasuk. Rashbam seems to premise his comments on the
assumption that a successful legal system requires the support and respect of
those governed. Without cooperation,
the law becomes a form of tyranny.
He explains that some
elements of the law seem to us to be very harsh. It may be difficult for us to accept as just and deserved the
punishments indicated by the Torah.
This is especially true for the family of a person sentenced to
death. Imagine the feelings of the
family of an individual executed for a violation of the Shabbat. It may be very difficult for these people to
appreciate the ultimate wisdom and justice of the punishment. The harsher and
the more protracted the punishment, the greater the potential for deep
resentment. Placing the body on
display, for an unduly long period, unnecessarily torments the family. Such a
policy will elicit their bitterness and resentment. In order to avoid this reaction, the Torah commands us to behave
with sensitivity and bury the criminal promptly.[5]
Lessons from
the Mitzvah of Yifat Toar
And she should remove from herself
the garment in which she was captured.
She should dwell in your house.
She should cry over her father and mother for a month. Afterwards you may come to her and take
possession of her. And she will be your
wife. (Devarim 21:13)
Our parasha contains the unique mitzvah
of the captive woman – the yefat toar.
What is this requirement or restriction created by this mitzvah? The Torah makes certain specific allowances
for the soldiers of Bnai Yisrael in battle.
For example, soldiers that invade and capture the territory of idolaters
are permitted to eat foods that are normally prohibited. The most remarkable allowance granted to
these soldiers is the right to enter into intimate relations with a captive
woman. This is remarkable. The woman is not a member of Bnai
Yisrael. The Torah strongly condemns
intimacy with members of other faiths.
Yet, in this specific circumstance, these relations are permitted.
The Torah carefully defines
the limits of this allowance. For
example, although the soldier is permitted to enter into extramarital relations
with the captive, this may only take place on a single occasion. Also, the woman must be treated with at
least a minimum level of sensitivity.
The soldier may only be intimate with the woman in a private place.
After this first episode,
the soldier’s relationship with the captive must be suspended. The woman is given the opportunity to
convert. If she chooses to enter into
Bnai Yisrael, the soldier may marry her.
She is married in the same manner as any other Jewish woman and has
exactly the same rights and privileges.
If she chooses to not convert, the man must release her and grant her
complete freedom.[6]
Why does the Torah permit
this unusual relationship? The Torah
recognizes that war awakens powerful emotions and drives within the
soldier. These drives are difficult or
impossible to completely suppress. If
the Torah would attempt to deny and completely check these potent desires, the
soldier would ignore the Torah.
Therefore, the Torah attempts to allow expression of these powerful
urges in a controlled manner.[7]
Specifically, the Torah
does not ignore or attempt to deny the soldier’s inappropriate urge to sexually
engage the captive woman. The Torah
does set limits and create boundaries.
The overpowering urge must be contained within these boundaries.
Our pasuk describes part of the
process that takes place after the initial intimacy. The pasuk describes three steps that are taken. First, the yefat toar is required to
remove the clothing she wore at the time of captivity. Second, she is taken into the soldier’s
home. Third, she mourns her father and
mother. What is the reason for each of
these three steps?
These steps demonstrate a special
characteristic of the Torah. The Torah
combines a deep perception of human nature with an insightful design for
personal improvement. Let us consider
how this characteristic is expressed in these three steps.
There is a general
consensus among the commentaries regarding the first two steps. In order to understand the purpose of these
first two steps, one important premise must be identified. The Torah only reluctantly allows the
initial intimate encounter between the soldier and the yefat toar. Also, the Torah recognizes that the
soldier’s infatuation with this woman may be extreme. Therefore, the Torah allows him to marry the captive once she
converts. However, the Torah does not
favor this union. Like a parent who is
unhappy with his son’s choice in an intended marriage, the Torah attempts to
discourage the union. The Torah’s
approach is to undermine the infatuation and accentuate the captive’s
shortcomings. We can now understand the
commentaries comments on the first two steps outlined in our pasuk.
Why is the yefat toar
required to abandon her clothing?
Rabbaynu Avraham ibn Ezra suggests that the Torah recognizes that
provocative clothing adds to a woman’s allure.
Perhaps, the clothing contributed to the soldier’s initial attraction to
the yefat toar. The Torah
commands that the clothing be removed.
Without these garments, the woman may not be as alluring.[8] Rashi adds that, among the heathen nations,
it was customary for the young women to adorn themselves in beautiful garments
at times of war.[9] According to Rashi, it is likely that the
woman’s clothing added to her attraction.
Therefore, the Torah’s efforts to discourage a permanent union require
that the yefat toar abandon these beautiful clothes.
The second step mentioned
in our pasuk is that the yefat toar must reside in the home of
the soldier. This step is also an
expression of the Torah’s determination to discourage a permanent union. Through living in his house, the captive
will become more familiar to the soldier.
It may not be completely true that familiarity leads to contempt. However, it is true that with familiarity,
the woman will become less exotic.
Rashi adds that the Torah hopes that she will become a burden or
inconvenience. She will be in the way
and under foot.[10] She must be maintained, but contributes
little to the household. It seems the
Torah is attempting to foster mild resentment in the soldier towards the yefat
toar.
The final requirement in the pasuk is
that the captive mourns her mother and father.
Rashi understands this requirement as a further expression of the
Torah’s strategy for discouraging a marriage between the soldier and his
captive. While this captive is mourning
the daughters of Bnai Yisrael are rejoicing in the victory of their
nation. The captive’s dour continence
will not compare favorably with the cheerful dispositions of the women of Bnai
Yisrael.
Chizkuni and others suggest that another
theme is expressed in these three steps.
The Torah only allows the soldier to marry the yefat toar if she
converts to Judaism. She must make a
complete break with her past. It seems
that this consideration may explain the requirement that the captive live in
the home of the soldier. She must leave
her family and nation. Chizkuni
suggests that this consideration explains the requirement for the yefat toar
to abandon her clothing. These clothes
are a remnant and expression of the captive’s past life. They create an attachment to the experiences
and attitudes of the past – a life she must now abandon. She is required to remove these clothes as a
step towards leaving her former life.[11]
This consideration suggests
an alternative explanation of the third step in the pasuk. The captive is required to mourn her father
and mother. Many of the commentaries
are troubled by this requirement.
Mourning assumes death. Why is
the captive required to mourn? Perhaps,
her parents survived the battles and are alive! Some commentaries suggest that the last step in the pasuk
is an expression of the Torah’s insistence that the yefat toar abandon
her past. Rabbaynu Saadia Gaon suggests
that she is not mourning the death of her parents. She mourns the loss of her
parents’ culture and religion. She must
discard the familiar and adopt a new set of beliefs and religion. This is difficult and engenders a feeling of
loss and estrangement. This is the
mourning in which the yefat toar engages.[12]
Rabbaynu Ovadia Sforno takes this approach one
step further. He contends that the yefat
toar mourns the loss of her father and mother. However, she is not mourning them because they are dead. They may be alive. She mourns the loss of her parents because she is required to
abandon them. She must completely sever
her ties to her idolatrous past. This
includes breaking off her relationship with her parents.[13]
Maimonides suggests that another important
consideration is expressed in the steps outlined in our pasuk. The Torah allows the soldier to experience
intimacy with the yefat toar. He
is allowed to give vent to his lusts.
However, the Torah does not allow the soldier to conduct himself as a
beast. His lust must be tempered with
consideration and compassion. As
explained above, he may not waylay the yefat toar on the field of battle
and force himself upon her. He must
take her to a private location before becoming intimate. Similarly, he must allow the captive to
mourn the loss of her parents and culture.
The soldier is expected to demonstrate compassion and empathy. The yefat toar is experiencing a
tremendous trauma. The soldier cannot
be insensitive to her personal tragedy.[14]
[1] Rav Ahron HaLeyve, Sefer HaChinuch,
Mitzvah 552.
[2] Sefer Divrai HaYamim I 5:1.
[3] Rabbaynu Ovadia Sforno, Commentary on Sefer Devarim 21:16.
[4] Rabbaynu Shlomo ben Yitzchak (Rashi), Commentary on Sefer Devarim 21:23.
[5] Rabbaynu Shemuel ben Meir (Rashbam) Commentary on Sefer Devarim 21:23.
[6] Rabbaynu Moshe ben Maimon (Rambam/Maimonides) Mishne Torah, Hilchot Melachim 8:1-5.
[7] Messechet Kiddushin 21b.
[8] Rabbaynu Avraham ibn Ezra, Commentary on Sefer Devarim 21:13.
[9] Rabbaynu Shlomo ben Yitzchak (Rashi), Commentary on Sefer Devarim 21:13.
[10] Rabbaynu Shlomo ben Yitzchak (Rashi), Commentary on Sefer Devarim 21:13.
[11] Rabbaynu Chizkiya ben Manoach (Chizkuni), Commentary on Sefer Devarim 21:13.
[12] Rabbaynu Saadia Gaon, Commentaries on Sefer Devarim 21:13.
[13] Rabbaynu Ovadia Sforno, Commentary on Sefer Devarim 21:13.
[14] Rabbaynu Moshe ben Maimon
(Rambam/Maimonides) Moreh Nevuchim, volume 3, chapter :41.