Q&A: Negative Commandment 227 in Comparison to the Eighth Principle in Maimonides’ Book of Commandments
Negative Commandment 227 in Comparison to the Eighth Principle in Maimonides’ Book of Commandments
Question
Rabbi Michael, hello and blessings,
My name is S., and I teach at Machanayim Yeshiva in Gush Etzion.
I am currently working on Nachmanides’ commentary to the verse, “And the land shall not be sold in perpetuity,” and comparing his interpretation in Babylonian Talmud, Makkot 3b with his interpretation in the Torah. It seems that there is a major difference between the two sources, one that even has significant practical halakhic implications.
In that context, I would also like to address Nachmanides’ critique regarding Negative Commandment 227 in the Book of Commandments. Maimonides counts as a commandment the prohibition against selling land in the Land of Israel in a way that it will not return in the Jubilee year. This is one of the commandments not counted by the Baal Halakhot Gedolot.
Nachmanides explains that the Baal Halakhot Gedolot refrained from counting this commandment “because for him it is a negation, not a prohibition,” and this proves, in his view, that the Baal Halakhot Gedolot understood very well the distinction presented in the eighth principle, “and it is not as the Rabbi suspected him, that he did not understand the idea of negations at all.”
The questions I am trying to clarify are as follows:
A. Does Nachmanides himself agree with the Baal Halakhot Gedolot that there is no prohibition of this kind, or, after he justifies the Baal Halakhot Gedolot’s approach, does he nevertheless maintain that there is in fact a prohibition?
B. What is the practical law when a person sells a field “on condition that it not return in the Jubilee year”? This is really a double question: 1. If there is a prohibition, does it invalidate the sale? 2. If there is no prohibition, is that because in any case it is not valid?
From this, a more fundamental question arises for me about the eighth principle as a whole:
In your detailed discussion in the book It Will Send Forth Its Roots, you addressed negation with respect to the dimension of “permission,” which falls under neither prohibition nor obligation. But is there also a negation that says there is no prohibition in a matter simply because it is impossible? For example: there is a prohibition of forbidden sexual relations that focuses on sexual relations between people who are forbidden to one another. But to the best of my knowledge, we do not find a prohibition against marrying one’s sister and the like, because the marriage is simply invalid. The negative commandments that relate to marriage are relevant only in a case where the marriage itself is valid.
I would be very grateful for any help.
Thank you very much
Answer
A. This is a question that comes up in quite a few of Nachmanides’ critiques in the Principles, where he defends the Baal Halakhot Gedolot—for example, regarding the counting of rabbinic commandments in the first principle, and more. From his wording, it is hard to tell in most cases. But usually you can check this through Nachmanides’ additions and omissions to the commandments that Maimonides included in his count. If this prohibition is omitted there, then he disagrees with Maimonides; if not, then not. I seem to recall that he does not remove it, but I have not checked just now.
B. The question about the relationship between the prohibition and the possibility of the act taking effect comes up explicitly in the passage about “if one acted, it is ineffective” at the beginning of tractate Temurah. Abaye and Rava disagree about it, and even among the halakhic decisors it is unclear whose view is accepted in practice. With Maimonides, several commentators argued that he ruled like Abaye, even though this is not part of the Ya’al Kegam mnemonic. There the Talmud discusses precisely the question whether there can be a prohibition for which one receives lashes merely because he violated the Merciful One’s statement, without the act itself actually taking effect.
Incidentally, the wording of the Torah is not to take a woman and her daughter as wives (and in the plain sense, “to take” means to marry). It is true that from the straightforward reading of the halakhic authorities it appears that the prohibition is on the actual sexual act, and there is no prohibition on betrothal. But it seems to me that from the passage about betrothal not given over to sexual consummation, it emerges that the fact that betrothal does not take effect in forbidden relations is not because of the prohibition, but because of the status of forbidden relation itself. Therefore, marrying one’s sister does not take effect regardless of the dispute between Abaye and Rava about betrothal not given over to sexual consummation. Even according to the view that such betrothal does take effect, his sister is not betrothed to him.