Q&A: Several Questions
Several Questions
Question
Peace and blessings to our master, the great eminent rabbi, may he live long and well:
In the responsa Mishkenot Yaakov (Orach Chayim sec. 21) it is written that even according to Maimonides (Laws of Tzitzit ch. 1, halakha 12), who holds that if one attached the tzitzit to a garment without specific intent for its own sake, it is valid, nevertheless a minor is worse and is invalid for attaching tzitzit. For Maimonides’ reason that without intent it is valid is that regarding attaching tzitzit we say that an unspecified act is presumed to be for its proper sake [as we say regarding the slaughter of sacred offerings; see Tosafot Menachot 42a, s.v. “Ve’al”], and just as we say regarding the slaughter of sacred offerings that a minor is invalid even though an unspecified act stands as for its proper sake, because a minor is worse in that he is like one acting unawares, so too regarding attaching tzitzit, a minor’s act is worse because he is like one acting unawares and is invalid.
And this requires analysis, from what is stated in Zevachim 47a: “From where do we know that one acting unawares with sacred offerings is invalid? As it says, ‘And he shall slaughter the son of the herd’ etc. From where do we know this is indispensable? As it says, ‘You shall slaughter it so that it be accepted for you’ etc.” See there. Seemingly we see the opposite: since a verse is needed to exclude one acting unawares in sacred offerings even with respect to the commandment ideally, and we do not say that it should be derived from the fact that one acting unawares is considered not for its proper sake, this must be because an unspecified act stands as for its proper sake, and therefore we should have said that even one acting unawares is valid. Therefore a verse is needed to exclude one acting unawares both with respect to the ideal fulfillment of the commandment and with respect to what is indispensable. If so, regarding tzitzit too, where we likewise say that an unspecified act stands as for its proper sake, and there is no verse to exclude one acting unawares, one could well say that even one acting unawares and a minor are valid for attaching tzitzit. [On the definition of the exemption of one acting unawares, see Mekor Chaim by the author of Netivot, in the laws of checking and nullification, beginning of sec. 431; Chelkat Yoav, Orach Chayim sec. 7; Responsa Rabbi Akiva Eiger, first edition, sec. 8].
Another matter: in Midrash Rabbah (Song of Songs 4:26 on the verse “Your shoots are an orchard of pomegranates”) there is an opinion that the libations the children of Israel brought in the wilderness over forty years came from the cluster of grapes that the spies brought from the Land of Israel; see there. Now, the medieval authorities (Rishonim) disagreed over the explanation of the earlier verse (13:20), “And strengthen yourselves and take of the fruit of the land.” Nachmanides’ view is: “And strengthen yourselves and take” means that they should not be afraid when taking the fruit of the land, lest they be recognized as spies. So he writes. [And so too Rashbam wrote: “And strengthen yourselves” — as mighty men to take, and do not fear anyone. And the Kli Yakar wrote: since the days were the days of the first ripe grapes and the owners are particular about taking them, nevertheless strengthen yourselves and be men, for God is with you; see there.] On the other hand, Targum Yonatan ben Uzziel wrote: “And perform an act of possession,” meaning that “and strengthen yourselves” means they should acquire the land by the legal act of possession called chazakah. [Possibly this means possession by walking, such that by walking through its borders this constituted possession.] And Sforno explicitly says that he told them to perform an act of possession by taking the fruits, meaning that by the very act of plucking the fruits they established ownership in order to acquire the land. Now then, according to Targum Yonatan ben Uzziel and Sforno, who say they made a legal acquisition of the land by chazakah, it works out well that the fruits they plucked belonged to them. But according to Nachmanides and those who agree with him, where it implies that they took the fruits without permission, since the owners were particular about it, this requires analysis according to the opinion in Bava Kamma 113a that stealing from a gentile is forbidden — how did they take fruits without permission? And even if you would say that by a temporary directive they were permitted to take fruit of the land, still according to that opinion in Midrash Song of Songs that the libations they brought during the forty years in the wilderness were from this cluster of grapes brought by the spies, then even if there was a temporary directive permitting theft, still how did they bring libations from this cluster? After all, the Holy One, blessed be He, hates robbery in a burnt-offering. And this is even more difficult according to the view of the Yere’im (end of sec. 422), that even according to the opinion that stealing from a gentile is permitted, it still is not considered “yours”; so again, how could it be possible to make from this property for the altar? [See Sukkah 30a in the discussion of the gentile myrtle, and analyze it carefully.].
With the blessing of Torah
Answer
A. First, a minor is worse than someone acting unawares, because he is not a person of understanding at all. Put differently: with regard to something fit for mixing, the lack of actual mixing does not prevent validity. A minor is not fit for intention, since he lacks legal understanding, and therefore the absence of intention is disqualifying.
Second, independently of that, there is a difficulty as to why someone acting unawares is not invalid (at least ideally) on the grounds that it counts as not for its proper sake. How do you answer that? After all, with someone acting unawares you cannot say that by default it is for its proper sake. (And it is forced to say that the presumption of “unspecified means for its proper sake” is not due to implicit intention but due to the situation itself.) In any case, this requires resolution, and once you have a resolution you can say it also in the view of Mishkenot Yaakov. It can be resolved in several ways: perhaps we are dealing with a particular kind of acting-unawares where there is still a default presumption of for-its-proper-sake, or in places where from the standpoint of the law of for-its-proper-sake it is not needed even ideally.
B. This is just pilpul for its own sake. If there is an instruction from the Holy One, blessed be He, to take the grapes and He permitted them the prohibition of theft, then they are theirs. On the contrary, one could say that this itself made them theirs (thus fulfilling the requirement of “yours”), and it consequently became clear that there is no prohibition of theft here (and therefore no issue of “He hates robbery in a burnt-offering”). Besides that, through despair of recovery and transfer to another domain — and after all, they handed them over properly to the community, since the libations come from communal property — the thief acquires it, and so it would indeed not count as robbery in a burnt-offering (I haven’t checked this). And even if you would say that there is still some law of theft here, how can one call this a commandment that comes through a transgression, when the act was done by God’s instruction? What is done by His instruction is certainly not a transgression, and so it indeed is not a commandment that comes through a transgression.