Lesson 36: Bamidbar

From the book Mida Tova: Articles on the Principles of Halakhic Thinking by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

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With God’s help

Concepts

• Uprooted verses.
• Two kinds of the divine domain.

Summary

In this week’s essay we deal with commandments whose purpose is to preserve the honor of the sacred vessels. We present three such commandments: a prohibition against seeing them, a prohibition against touching them, and a prohibition against stealing them. According to most halakhic authorities, the prohibition against seeing them does not exist in halakha (Jewish law), even though it appears explicitly in the verse. This is one example among several of uprooted verses, that is, explicit verses that the Sages ignore in practical halakha. We do not mean verses that are interpreted differently from their plain sense, but verses that are not included in halakha at all, under any interpretation. We discuss another example of uprooted law as well: the Sabbath rest of one’s son. There too, although the verse explicitly commands it, the Gemara and the medieval authorities bluntly ignore this commandment.

We suggest two basic possibilities for explaining uprooted verses:

1. The Torah wants these commandments to remain voluntary norms rather than full legal obligations.
2. These commandments were given only for their own time, not for future generations.

We then turn to the prohibition against stealing sacred vessels, which is learned by a midrash (rabbinic interpretive exposition) from our Torah portion. We present a dispute over whether one who steals sacred vessels also violates the ordinary prohibition of “You shall not steal” or not. Regarding these two prohibitions, the question arises: how can one steal sacred vessels at all? They are hekdesh (consecrated property), and regarding such property it is said that “wherever it is, it is in the treasury of the Merciful One” – that is, it cannot be removed from the domain of consecrated property.

We suggest several possible ways to solve this difficult problem. One possibility is to distinguish between two kinds of consecrated property: consecrated property owned by the Holy One, that is, the divine domain, which includes sacrifices; and consecrated property owned by the collective of Israel, which includes the sacred vessels. Our claim is that consecrated property of the second type is not “in the treasury of the Merciful One,” and therefore it can be acquired – and also stolen. We note that some talmudic discussions apply the principle “wherever it is…” to property consecrated for Temple maintenance, and we therefore propose a different formulation of the solution, based on a principle we discussed in an essay on Ki-Tissa, 5767: acquisition by an individual from a collective to which he himself belongs is easier. On that basis, we suggest that perhaps such acquisition can take place even without removing the object from the domain of consecrated property.

On the Theft of Sacred Vessels

A Look at Uprooted Verses

A. The Obligation to Preserve the Honor and Sanctity of the Sacred Vessels

Introduction

The author of Sefer HaChinukh writes that no commandments are enumerated in our Torah portion. But the author of Minchat Chinukh comments there that this is true only according to those who follow Maimonides. According to Bahag (Halakhot Gedolot), and also Ramban, there is one enumerated commandment here: the prohibition against stealing the sacred vessels. In this week’s essay we shall encounter three prohibitions connected to the honor of the sacred vessels, and we will consider some of their implications.

The Commandments of Honoring the Sacred Vessels

In our Torah portion, the Torah describes the roles of the families of the tribe of Levi. Within the section dealing with the sons of Kohath, the main emphasis is on their duty to cover the sacred vessels with tachash skins. In the course of that discussion, two sub-sections appear. The first deals with the prohibition against touching the sacred vessels, in Numbers 4:15:

When Aaron and his sons have finished covering the sanctuary and all the sacred vessels, when the camp sets out, afterward the sons of Kohath shall come to carry them; but they shall not touch the holy things, lest they die. These are the burdens of the sons of Kohath in the Tent of Meeting.

The second is more obscure, but from the context it also seems related to the sanctity of the sacred vessels, Numbers 4:17-20:

The Lord spoke to Moses and to Aaron, saying: Do not let the tribe of the families of the Kohathites be cut off from among the Levites. Rather, do this for them, that they may live and not die when they approach the most holy things: Aaron and his sons shall come and assign each man to his service and to his burden. But they shall not come to see when the holy things are swallowed up, lest they die.

Already the Sages dealt with the interpretation of this obscure command: “They shall not come to see when the holy things are swallowed up.” The commentators there explain that this is a prohibition against seeing the vessels while they are being covered. For example, Ibn Ezra, in his commentary on this verse, writes:

“They shall not come” – the Kohathites may not enter the Tent of Meeting to see when the holy thing is swallowed up. The meaning is that when its covering is removed, the curtain screen is removed and the Ark is revealed. Some say that “swallowed up” means “covered”; then the meaning is when they cover the Ark in order to carry it. This meaning is close to the first. Thus there are two warnings: they must not touch the holy thing, for it is to be carried only by its poles, and they must not see the holy thing.

This is the plain sense of Scripture; Targum Onkelos, Rashi, Rashbam, and others interpret it similarly.¹ Ibn Ezra also connects this to the prohibition stated just before, against touching the sacred vessels. It seems, however, that he means this only with respect to the Ark, and not with respect to all the sacred vessels.²

By contrast, in the Mishnah in Babylonian Talmud, Sanhedrin 81b, the following law appears:

One who steals the sacred vessels, one who curses by means of sorcery, and one who has relations with an Aramean woman – zealots may strike him down.

And the Gemara there explains:

What is the article referred to here? Rav Yehudah said: the sacred vessels, as it says, “and the libation bowls.” And where is this alluded to? “They shall not come to see when the holy things are swallowed up, lest they die.”

That is, the Sages derive – by way of allusion – from this verse a prohibition against stealing sacred vessels. They also add that one who violates this prohibition, along with two others, is subject to attack by zealots.

As noted, Bahag counts this prohibition in his enumeration at the beginning of his work, negative commandment 156:

These are the negative commandments punishable by forty lashes: … 156. They shall not come to see when the holy things are swallowed up.

Thus, according to the plain sense of the verse, it is forbidden to see the covered sacred vessels, while the verse also contains an allusion to a prohibition against stealing sacred vessels. Ramban, in his commentary there, brings three interpretations:

“They shall not come to see when the holy things are swallowed up” means when the vessel is placed into its case, as Rashi explained earlier in this section: a certain cloth is spread over it and a certain covering is placed over it, and this “swallowing” is its covering. This is Rashi’s interpretation, and also that of Onkelos. Our Rabbis said in tractate Sanhedrin 81b that this is a warning concerning one who steals sacred vessels, who is liable to death and to the zealots, for theft and robbery are called “swallowing,” as in the verses “He swallowed riches and vomits them up” and “I will bring out of his mouth what he swallowed.”

Rabbi Abraham, that is, Ibn Ezra, explained it according to its plain meaning: they may not come to see when the curtain screen is removed and the Ark is revealed; only afterward, when it is covered, may they come to carry it. Thus “when the holy thing is swallowed up” means when the structure over the Ark, which is holy, is removed, as in “The Lord has swallowed up and not pitied” and “together they surrounded me and swallowed me up.” The Levites are warned not to touch the holy Ark and die; rather, they are to carry it by its poles. In addition, they are warned not to come at all and see the removing of the covering while Aaron takes down the curtain, as in the matter of “because they looked upon the Ark of the Lord.” He has spoken well.

But according to the deeper truth, the meaning of the verse is that because the glory of the One who sits upon the cherubim is there, the Levites were warned not to break through and behold the Lord until the priests lowered the curtain. Then the glory would appear in the hiddenness of its might and return to its original place, the Holy of Holies. According to this, “when the holy thing is swallowed up” is literal. The discerning will understand.

So our Torah portion contains three prohibitions relating to the honor of the sacred vessels: a prohibition against seeing them, from the plain meaning of verse 20; a prohibition against touching them, perhaps only with respect to the Ark, from the plain meaning of verse 15; and a prohibition against stealing them, derived midrashically from verse 20.

The prohibition against seeing the sacred vessels is counted in Yere’im, commandment 329, together with the prohibition against stealing sacred vessels:

“They shall not come to see when the holy things are swallowed up.” Fear these matters and set His fear before your eyes, and give honor to the vessels of His holiness. Scripture warned concerning the sacred vessels when they are placed into their cases for transport, as it says in the section “In the wilderness of Sinai”: “They shall not come to see when the holy things are swallowed up” – that is, they shall not come to see when the vessels are placed into their cases, as though swallowed within them. Strictly speaking, this should have been counted among those liable to death at the hand of Heaven. Even though in Sanhedrin, chapter “These Are Burned” (81b), we find that it is subject to the zealots, I did not count it, for it was taught: one who steals the sacred vessels, zealots may strike him down. And we say: what is this? Rav Yehudah said: the sacred vessels… “they shall die” means through the attack of zealots, not by death at the hand of Heaven. Rav Yehudai Gaon likewise counted it among the negative commandments.

The same is true of Rabbi Yehudah al-Barceloni and Rabbi Shimon ben Gabirol in their liturgical enumerations, as cited by Rabbi Yerucham Fishel Perla in his commentary on Saadia Gaon’s Sefer HaMitzvot. But Maimonides and Sefer HaChinukh did not count it.

With regard to stealing the sacred vessels, the medieval authorities disagreed. Maimonides did not count it, as he explains in the third root of Sefer HaMitzvot, because it is a commandment that does not apply to future generations. Sefer HaChinukh, as usual, followed him. Bahag, by contrast, did count it; see also Ramban’s glosses on the third root. Saadia Gaon wrote the cryptic line:

The Levites shall not touch, and they shall not see when the holy thing is swallowed up.

Perla explains that Saadia is counting three negative commandments here, apparently the three prohibitions we described above. He explains the prohibition of touching as applying only to the Ark, namely, carrying it by hand rather than by its poles, but Saadia’s wording does not clearly support that.

The Prohibition Against Touching the Sacred Vessels

At first glance, this is the most explicit prohibition in the text: “They shall not touch the holy things.” The verse also states the punishment for violating it. Yet although Ibn Ezra and Ramban do indeed treat this as a prohibition, according to most views we do not find this prohibition in the Sages or in the halakhic authorities. It is possible that Saadia Gaon meant this prohibition when he wrote, “The Levites shall not touch,” but even that is uncertain.

In fact, we even find an explicit ruling that denies any prohibition of touching. In Sefer HaMitzvot, negative commandment 72, Maimonides cites a warning to Levites not to perform the עבודות assigned to priests, and to priests not to perform the עבודות assigned to Levites. According to Maimonides, in Laws of the Temple Vessels 3:11, the punishment in the latter case is lashes; Raavad there disagrees and holds that it too is punishable by death at the hand of Heaven. In the course of that discussion, Maimonides cites the following from Sifre Zuta; the same appears in Sefer Mitzvot Gadol, negative commandments 296:

In the Mekhilta it says: “They shall not approach the sacred vessels or the altar.” One might think that if they merely touched them they would be liable. Scripture therefore says “only”: they are liable only because of service, and not because of touching.

So touching does not incur punishment. This is, of course, in direct contradiction to the verse, which says “lest they die.” One could still have said that there is no punishment, but there remains a prohibition. Here Maimonides comes in Laws of the Temple Vessels 3:9 and writes:

… All the Levites are warned concerning the service of the altar, as it says, “But they shall not approach the sacred vessels and the altar, lest they die” – they may not approach for service, but touching is permitted.

Thus it is explained here that touching is entirely permitted. According to Maimonides, we therefore uproot the verse entirely from its plain sense: the verse contains both a warning and a punishment for touching, while in practical halakha we rule that there is neither warning nor punishment. Let us note that Ramban and Ibn Ezra disagree with him and hold that there is a prohibition on touching, and apparently also punishment, though perhaps only with respect to the Ark.

A Note on the Views of Ramban and Ibn Ezra

The midrash cited by Maimonides apparently contradicts Ramban and Ibn Ezra, since it states that there is no prohibition in touching. Their view can be explained in three ways:

1. They may have understood that there is indeed no punishment – which is all the midrash says – but there is still a prohibition, contrary to Maimonides, who understood the midrash to mean that there is no prohibition either.
2. There may be no prohibition against touching the sacred vessels in general, and what they prohibited was only touching the Ark.
3. It seems from their wording that they interpret the prohibition of touching as a prohibition against carrying the vessels without poles, and not as a prohibition against touching them in every setting. On that reading there is no contradiction: as the midrash states, there is no prohibition against touching sacred vessels as such, but there is a prohibition against carrying them by hand, without poles or covering.

B. Uprooted Laws: One’s Son’s Sabbath Rest

Introduction

We thus learn that, at least according to Maimonides and the midrash he cites, the commandment written in this verse – a negative commandment – was completely uprooted. It is not ruled in halakha at all. Even according to Ramban and Ibn Ezra, it may be that the punishment written in the verse was uprooted.

This is a very puzzling phenomenon. How can one uproot a prohibition stated in an explicit verse and ignore it? We are familiar with examples of midrashic interpretation that displaces the plain meaning. For example, “an eye for an eye” is interpreted as monetary compensation. But in such cases no verse is uprooted; rather, it receives an interpretation that departs from the plain sense. This is a preference for the homiletical reading over the plain one. The verse itself certainly remains part of halakha. Here, however, we find a far more unusual phenomenon: the verse is uprooted entirely. No alternative interpretation is proposed for it, not even homiletically, and yet the commandment stated in it is not included in the accepted halakha. Even the midrash from Sifre Zuta that uproots this law does not propose a different interpretation of this verse; it derives from another verse entirely. If so, what is this verse for? How can a command-verse in the Torah be left without practical implementation?

Another Example: One’s Son’s Sabbath Rest

Another example we found of an uprooted law – that is, an explicit command in a verse that is not implemented in halakha – is the Sabbath rest of one’s son. The verse says, in Exodus 20:10, and see also Deuteronomy 5:14:

But the seventh day is a Sabbath to the Lord your God; you shall not do any labor – you, your son, your daughter, your male servant, your female servant, your animal, and your stranger within your gates.

Thus the Torah explicitly commands the Sabbath rest of one’s children. And indeed, the Sabbath rest of one’s animal is a universally accepted prohibition among the halakhic authorities, while with respect to the rest of one’s utensils Beit Hillel and Beit Shammai disagreed. But the Sabbath rest of one’s son is an uprooted command.

Rashi on the verse cites the Mekhilta:

“You and your son and your daughter” – these are minors. Or perhaps adults? You must say no, for they are already warned. Rather, the verse comes only to warn adults regarding the Sabbath rest of minors. This is what we learned in Babylonian Talmud, Shabbat 121a: “If a child comes to extinguish a fire, we do not listen to him, because his rest is incumbent upon you.”

So it appears that there is indeed a warning to adults to ensure the Sabbath rest of minors, and that it is learned from this verse.

We shall now see that this law is “uprooted,” in the sense that it does not appear in the halakhic decisors, at least in most of them, and they even ignore it quite blatantly.

The Sugya in Shabbat 121a: A Child Who Comes to Extinguish

When one looks at the sugya in Babylonian Talmud, Shabbat 121a, mentioned by Rashi in his commentary on the Torah, one finds a complete disregard for the law of one’s son’s Sabbath rest. The Mishnah there discusses a case in which a fire broke out in the house and now either a gentile or a child comes to extinguish it. The Mishnah says:

If a gentile comes to extinguish, we do not tell him, “Extinguish,” nor “Do not extinguish,” because his rest is not incumbent upon them. But if a child comes to extinguish, we do not listen to him, because his rest is incumbent upon them.

The Gemara there objects to the Mishnah:

But if a child comes to extinguish, we do not listen to him because his rest is incumbent upon them. You may infer from this that when a minor eats forbidden foods, the court is commanded to separate him from them. Rabbi Yohanan said: this speaks of a minor acting with his father’s approval.

At first glance, the Mishnah implies that when a child violates prohibitions, we are obligated to stop him, because “if a child comes to extinguish, we do not listen to him.” But the halakha is that when a minor eats forbidden foods, the court is not commanded to separate him; see Babylonian Talmud, Yevamot 114a and parallels. The Gemara, one would think, should immediately have cited the verse commanding the Sabbath rest of one’s son, and explained that the Sabbath is a special case: one is commanded concerning the rest of minors on the Sabbath, and therefore, if we see a child violating Sabbath prohibitions, we must stop him according to all opinions, even though with other prohibitions there is no such obligation in halakha.

Yet the Gemara appears to ignore the uniqueness of the Sabbath in this matter, even though it is explicit in the verse. It should be noted that even in the Gemara’s answer, the case is established as one where the child acts with his father’s approval. That means that the prohibition exists because the child is viewed as acting as the father’s agent, or as though the father were directly causing him to violate a prohibition – and that is forbidden in all Torah prohibitions; see Yevamot there regarding directly feeding forbidden items to a minor. In other words, even according to the Gemara’s conclusion, there is no special Sabbath rule concerning minors.

In Tosafot on the words “You may infer from this” – and likewise in Rashba, Ritva, and other medieval commentators there – they further object that here the prohibition is only rabbinic, whereas in Yevamot it is clear that in the case of a rabbinic prohibition all agree that there is no obligation to stop the child. That means that they treat this entirely like the general category of a minor eating forbidden things, and do not see any special feature in Sabbath prohibitions. It should be noted that in the sugya in Yevamot too, Sabbath prohibitions are listed together with all other prohibitions. It seems that the Sages did not see any uniqueness in Sabbath prohibitions regarding our obligations toward minors, even though the matter is explicit in the verse.

In the Gemara’s answer as well, the medieval commentators explain that when a minor acts with his father’s approval, adults are obligated to stop him because he is treated as if the father had directly caused him to violate the prohibition. In all Torah prohibitions it is forbidden to directly cause a minor to commit a prohibited act, even according to the view that there is no obligation to stop him from a violation he undertook on his own. So the Gemara’s conclusion likewise is not understood as referring to the law of one’s son’s Sabbath rest.

The only exception is Rashba. Although here he explains the passage like the other medieval authorities, at the beginning of the chapter Mi Shehechshikh, Babylonian Talmud, Shabbat 153b, he interprets the sugya in accordance with the above Mekhilta cited by Rashi:

Whenever the prohibition concerns the person’s own act, if we tell a minor to do it there is also a biblical prohibition, as it is written, “Do not eat them,” which may be read “Do not feed them.” And in Yevamot, chapter “HaCheresh” (114a), we say: a person may not tell a child, “Bring me a seal, bring me a key,” but if he lets him pluck or throw, he may leave him alone. And above, on 121a, it was also taught: “If a child comes to extinguish, we do not listen to him,” and the Gemara explained that it refers to a child acting with his father’s approval – that is, one violates thereby “You shall not do any labor, you and your son.”

Rashba writes here that alongside the prohibition against directly causing minors to violate prohibitions, there is a special prohibition concerning Sabbath prohibitions, learned from the verse “You shall not do any labor, you and your son,” which we cited above. This is a lone opinion, and it sharply highlights the glaring disregard in the Gemara itself. The matter is especially difficult because both Rashba and Rashi, who cited this exposition in his Torah commentary, explain the sugya itself like all the other medieval authorities. The reason is that in the sugya itself the special Sabbath verse is certainly never mentioned. That strongly indicates that the Gemara there did not hold that there is any special prohibition regarding one’s son’s Sabbath rest beyond the general duty that applies in other prohibitions.

One might perhaps have said that the prohibition against directly causing a minor to violate a prohibition is learned from the law of one’s son’s Sabbath rest, and therefore in practical halakha there is no distinction between Sabbath prohibitions and other prohibitions. But the sugya in Yevamot 114a derives that prohibition from three different sources, none of which concerns the Sabbath. The sugya there also explains why each of the three is necessary. This clearly proves that there is no other source for that prohibition besides those three, and we are forced to conclude that the Sabbath rest of one’s son is a distinct prohibition, unique to the Sabbath.

These ideas also appear indirectly in Yere’im, section 101:

On this matter it was taught there in the Mekhilta: “Your son and your daughter” – these are the minors whose rest you are warned about. Do you say minors, or perhaps adults? But adults are already warned. Why then does the verse say “your son and your daughter”? These are the minors. And this is what we learned in Shabbat, chapter “All the Sacred Writings” (121a): “If a child comes to extinguish, we do not listen to him, because his rest is incumbent upon you.” But in Yevamot, chapter “HaCheresh” (114a), Rabbi Yohanan establishes this as referring to a child acting with his father’s approval. But if he is not acting with his father’s approval, the father is not warned concerning his rest, as we say in Yevamot: when a minor eats carcasses and torn meat, the court is not commanded to separate him. Thus “your son and your daughter” in the verse, which we interpret as referring to minors, also refers to a child acting with his father’s approval, who knows that it pleases his father, and therefore acts.

Here too it appears that he does not sharply distinguish between the prohibition against directly causing a minor to violate prohibitions and the duty of one’s son’s Sabbath rest. It is possible, however, that he is discussing Sabbath prohibitions alone, but in his view the legal parameters there are the same as those of directly causing a child to violate other prohibitions: if the child acts on his own, there is no obligation to stop him, and only if one directly causes him to violate the prohibition – or he acts with his father’s approval, which is equivalent – is the matter forbidden.

Let us note that the views of Rashba and Yere’im made only a very weak entry into practical halakha; see Mishnah Berurah, Orah Hayyim 334:65, and Sha’ar HaTziyyun there, 54. Most decisors omit this entirely. We should also note that a good number of later authorities discussed the relation between the prohibition of directly causing a minor to violate a prohibition and the command of one’s son’s Sabbath rest.³ But the neglect of this command in the halakhic literature still cries out to heaven.

A Possible Solution: For Its Time and Not for Future Generations

Maimonides, in the third root of Sefer HaMitzvot, states that commandments not meant for future generations are not counted. In that context he also refers to our verse and writes:

Others besides us have also erred in this root and counted, because of their limited grasp, “They shall not come to see when the holy things are swallowed up” at the end of Bamidbar. They also counted “he shall no longer serve” regarding the Levites in Beha’alotekha 8. These too do not apply for future generations, but only in the wilderness. And although they said in Sanhedrin 81b that “They shall not come to see” is an allusion to one who steals the sacred vessels, it is quite sufficient that they said “an allusion,” for the plain meaning of the verse is not so. Nor is it among those liable to death at the hand of Heaven, as explained in the Tosefta, Zevahim end of chapter 12, and Keritot 1:2, and in Sanhedrin 83a.

Maimonides rules that the prohibition that emerges from the plain sense of the verse – not to see the sacred vessels – is not counted because it does not apply to future generations. The prohibition against stealing sacred vessels, which does apply to future generations, is not counted because it is not the plain meaning of the verse, but only an “allusion.”⁴

Perla, in his commentary on Saadia Gaon’s Sefer HaMitzvot, explains that Bahag too does not count the prohibition against seeing the sacred vessels, because it does not apply to future generations.⁵ He counts the prohibition against stealing sacred vessels because, in his view, commandments derived by exposition are counted as well. Perla argues that a basis for this can be seen in Babylonian Talmud, Yoma 54a:

Rav Kattina said: When Israel would ascend for the pilgrimage festivals, they would roll up the curtain for them and show them the cherubim, which were intertwined with one another, and say to them: See how beloved you are before the Omnipresent, like the love of male and female. Rav Hisda raised an objection: “They shall not come to see when the holy things are swallowed up,” and Rav Yehudah said in the name of Rav: this refers to the time when the vessels are placed into their wrappings. Rav Nahman said: It is like a bride. So long as she is in her father’s house, she is bashful before her husband; once she comes to her father-in-law’s house, she is no longer bashful before her husband.

And Rashi writes there:

“In her father’s house” – during betrothal. So too Israel in the wilderness were not yet familiar with the Divine Presence.

That is, the principle of the prohibition in the wilderness was that Israel still did not feel free and intimate in the presence of the Divine Presence, like a bride in her father’s house before she reaches her husband’s home. But once she reaches her husband’s home, the relationship is freer, and therefore the Levites are permitted to see the sacred vessels.

It is reasonable that the same principle should apply to the prohibition against touching the sacred vessels. That prohibition too was stated only for its own time and not for future generations, and therefore the enumerators of the commandments did not count it.⁶ This is indeed what Perla suggests there.

In principle, this seems a possible solution to all uprooted laws. The verses were not stated for nothing, and halakha did not uproot verses. Some verses were spoken only for their own time and not for future generations.⁷

And Yet, Uprooted Verses

Still, the very fact that the decisors simply ignore this verse also demands explanation. We would have expected them to raise the issue of this command and answer that perhaps it was not intended for future generations. But the decisors simply ignore it.

The command of one’s son’s Sabbath rest is troubling from the same angle. There too there is blatant disregard for an explicit command in the Torah, and there the possibility that it was only temporary seems quite implausible. Why should there be any difference between the Sabbath command in the wilderness and the Sabbath command for future generations? Or between the command concerning education in the wilderness and in later times?

The conclusion seems to be that some verses remain uprooted in halakha. The explanation for this puzzling phenomenon probably does not lie entirely in the distinction between temporary commands and permanent ones. It may be that such commands remain as norms that are not quite formal commandments, but are still expected of us, and therefore do not find expression in practical halakha. Even so, we would expect some discussion of the matter, and some explanation of why these verses are formulated specifically in this way, as we saw regarding seeing the sacred vessels. The issue of uprooted verses therefore remains, in our view, in need of further inquiry.

C. The Relation to the Prohibition of Theft

Introduction

We saw that the Sages derive, by way of exposition, a prohibition against stealing sacred vessels, and according to all views this is certainly a full prohibition. The question whether it is fully biblical or not is disputed between Maimonides and Ramban.

At the beginning of the Book of Numbers, Minchat Chinukh assumes as obvious that one who steals sacred vessels also violates the ordinary prohibition of “You shall not steal,” like any other thief of money or property. Why should there be any difference between private property and property of Heaven?⁸ He wonders whether liability applies even where the object is worth less than a perutah, and whether in such a case too the rule of zealots attacking him would apply. In this section we will consider the relation between the prohibition against stealing sacred vessels and the ordinary prohibition of theft.

The Domain of Consecrated Property: “Wherever It Is, It Is in the Treasury of the Merciful One”

The Gemara in Babylonian Talmud, Rosh Hashanah 6a discusses whether one who designated a sacrifice and did not offer it has violated his vow. It states that, were it not for the verse, we would indeed think there is no violation, because:

Wherever it is, it is in the treasury of the Merciful One.

That is, wherever the animal may be, it is in the divine domain. Since “the whole earth is full of His glory,” He is present everywhere, and therefore it is as though the sacrifice had already been brought, at least with respect to fulfillment of the vow. “The treasury of the Merciful One” means the storehouse of the Holy One, which is the whole world.

In Babylonian Talmud, Hullin 139a, the Gemara cites a source for this principle from the verse “The earth is the Lord’s and its fullness,” and applies it to other, similar questions:

But if one consecrated his hen for Temple maintenance, which is not an altar offering but only monetary sanctity, then once it fled one might think its sanctity has lapsed and it is subject to the command of sending away the mother bird. Samuel said: Wherever it is, it is in the treasury of the Merciful One, as it is written, “The earth is the Lord’s and its fullness.” And Rabbi Yohanan likewise said: if one consecrated his hen for Temple maintenance and it fled, Resh Lakish said to him: once it fled, has its sanctity not lapsed? He replied: it is in the treasury of the Merciful One, as it is written, “The earth is the Lord’s and its fullness.”

In other words, if a hen consecrated for Temple maintenance escaped, according to Rabbi Yohanan its sanctity does not lapse, because wherever it is, it is still regarded as being in the Holy One’s domain, since “the whole earth is the Lord’s.”

Another example brought there concerns responsibility for consecrated property that was lost. Here too, so long as it still exists somewhere in the world, it is not considered lost with respect to the Holy One, for the same reason:⁹

It was stated: If one said, “This maneh is for Temple maintenance,” and it was stolen or lost, Rabbi Yohanan said: he remains responsible for it until it comes into the hands of the Temple treasurer. Resh Lakish said: wherever it is, it is in the treasury of the Merciful One, as it is written, “The earth is the Lord’s and its fullness.”

A third case concerns responsibility for objects that were consecrated and later went missing. Here too, as long as they still exist in the world, he is not obligated to pay, because they are still in the Holy One’s domain wherever they may be found:

But did we not learn: If one says, “This ox is a burnt offering,” or “This house is a consecrated offering,” and the ox dies or the house collapses, he is not responsible for them. If he says, “I undertake an ox as a burnt offering,” or “I undertake a house as a consecrated offering,” and the ox dies or the house collapses, he must pay. This is so where the ox died or the house collapsed, because they no longer exist. But where they still exist, wherever they are, they are in the treasury of the Merciful One, as it is written, “The earth is the Lord’s and its fullness.”

All these are examples concerning responsibility for loss and the definition of the domain of consecrated property, but not necessarily the laws of acquisition.

Can One Steal from Consecrated Property?

At first glance, in light of the above, it would follow that one cannot steal from consecrated property, for wherever the stolen item is found, it is still in the domain of consecrated property. This would be a possible application of the principle to the laws of acquisition. Is that extension indeed correct?

The Gemara in Babylonian Talmud, Ketubot 30b discusses whether a non-priest who ate terumah (the priestly due) must pay for it, or whether the punishment of death at the hand of Heaven that he incurs exempts him from payment under the rule that the more severe penalty overrides the lesser monetary one. The Gemara says that Abaye and Rava dispute this: according to Rava he is liable, and according to Abaye he is exempt. The Gemara then asks:

And according to Abaye he is exempt? But Rav Hisda said: Rabbi Nehunya ben HaKanah agrees that one who steals another person’s forbidden fat and eats it is liable, because he already became liable for theft before the prohibition of forbidden fat came into effect. This shows that from the moment he lifted it he acquired it, whereas he did not become liable to death until he ate it. Here too, at the moment he lifted the terumah he acquired it, whereas he did not become liable to death until he ate it.

The Gemara says that there is a difference in time between acquiring the terumah and violating the prohibition of eating it. The acquisition takes effect immediately upon lifting it, while the prohibition of eating takes place only afterward. When the capital punishment and the monetary liability are not simultaneous, there is no exemption under that rule.

In Shitah Mekubetzet there, a difficulty is raised regarding the Gemara’s assumption that the terumah is acquired from the moment of lifting. The author argues that terumah is holy, and a holy item cannot be acquired, because “wherever it is, it is in the treasury of the Merciful One.” That is, he extends from the sugyot we saw above the principle that one cannot remove property from the domain of consecrated property, and therefore one cannot steal from consecrated property.

To resolve this, Shitah Mekubetzet distinguishes between terumah and consecrated property. Terumah is the property of the priest, not of consecrated property. Therefore it does not make sense to say that wherever it is, it remains in its owner’s domain. The priest is flesh and blood; his legal domain is like that of any other human being. So the sanctity of terumah affects only its legal status, but in monetary terms it belongs to a private individual, the priest, and not to consecrated property. Therefore it can be removed from its owner’s domain, and hence it can be stolen.

Thus, according to the conclusion of Shitah Mekubetzet, genuine consecrated property, unlike terumah, really cannot be stolen. Wherever it is, it remains in the divine domain.

What About One Who Steals Sacred Vessels?

This conclusion, of course, raises a major difficulty regarding the claim of Minchat Chinukh cited above, according to which one who steals sacred vessels also violates the ordinary prohibition of theft. This is the question raised by the son of the author of Klei Chemda, as cited in that work on our portion, section 7. How can one steal sacred vessels, if wherever they are found they are still “in the treasury of the Merciful One”? Sacred vessels resemble consecrated property, not terumah, since they belong to the divine domain. If so, according to Shitah Mekubetzet it should be impossible to remove them from that domain.⁹

It should be noted that he raises his question only with respect to the ordinary prohibition of “You shall not steal” – that is, against the position of Minchat Chinukh. But in truth the difficulty can be extended to the very prohibition of stealing the sacred vessels. Even if one who steals sacred vessels does not violate “You shall not steal,” but only “They shall not come to see when the holy things are swallowed up,” it is still unclear how he can be viewed as a thief even for that special prohibition. Here too we are dealing with an act of theft, and if sacred vessels are not the sort of thing that can be stolen, then that prohibition too cannot apply to them.

Theft of Land

The Gemara, see Babylonian Talmud, Sukkah 30b-31a and Bava Kamma 95a-b, says that land cannot be stolen. Tosafot in several places, for example Bava Metzia 61a, together with Maharsha and Penei Yehoshua there, explain that there is no prohibition at all of robbery or theft with respect to land. Rashi, by contrast, on Deuteronomy 19:14, cites Sifre to the effect that there is a negative commandment here. According to Rashi, then, what the Gemara means is that there is no duty of restitution in the case of land, and the land is not acquired by the robber. But in his view, one who robs land certainly does violate the prohibition “You shall not rob” or “You shall not steal.”¹⁰

The author of Klei Chemda argues that the question whether consecrated property can be stolen should depend on this dispute among the medieval authorities regarding the theft or robbery of land. The dispute concerns whether the fact that land never leaves its owner’s domain necessarily means that there can be no prohibition of theft with respect to land. According to Tosafot, who hold that there is no prohibition in the case of land, it is clear that wherever there is no removal from the owner’s domain, no prohibition applies. According to Rashi and those who follow him, however, there can be a prohibition of theft even where there is no removal from the owner’s domain at all. On that basis, even in the case of one who steals sacred vessels, one may define a prohibition of theft. True, one cannot remove an item from the domain of consecrated property, but it does not necessarily follow from that that there can be no prohibition of theft regarding sacred vessels. Just as with land, so too with sacred vessels there may be a prohibition even without removal from the domain of consecrated property.

Here one might perhaps distinguish between the ordinary prohibition of “You shall not steal” and the prohibition of “They shall not come to see when the holy things are swallowed up.” With regard to “You shall not steal,” the medieval authorities dispute the definition of the prohibition. According to Tosafot, it consists in removing the item from its owner’s domain, and where no such removal takes place, no prohibition applies. If so, with sacred vessels too there would be no violation of “You shall not steal.” According to Rashi, by contrast, the prohibition consists in performing an act that would effect acquisition if the owner consented, even though without consent ownership does not transfer, as in the case of land. According to that approach, it is certainly possible that “You shall not steal” can apply to sacred vessels as well.¹¹

As for the prohibition of “They shall not come to see when the holy things are swallowed up,” here it is possible that everyone would agree that the prohibition is to perform an act that could effect acquisition if there were consent. That may be precisely the novel element that the Torah prohibited with respect to sacred vessels, and this is why the ordinary prohibition of “You shall not steal” did not suffice.¹²

A Proposed Solution: Narrowing the Principle of “Wherever It Is…”

Our problem can also be solved by giving up the assumption of Shitah Mekubetzet. As we already noted, the Gemara itself never applies the principle of “wherever it is…” to the laws of acquisition. It appears only with respect to responsibility for consecrated property that was lost, and the like. In that area the Gemara says that something lost from consecrated property is not really lost. But with respect to acquisition one may say that consecrated items can be acquired, and once they are acquired they thereby leave the domain of consecrated property. That very fact strengthens the acquisition that was performed. The removal from the domain of consecrated property and the acquisition take place simultaneously.

If so, according to Shitah Mekubetzet one indeed cannot steal sacred vessels, and therefore there would be no prohibition of stealing them either. But his view is not necessary, and it is possible that Minchat Chinukh disagrees with it. In his view, the principle of “wherever it is…” applies only to responsibility, and not to the laws of acquisition.

Another Proposed Solution: Two Kinds of Consecrated Property

It may be possible to solve our problem in a different way. When a person consecrates a sacrifice for offering, it becomes consecrated property. Its monetary owner is now the divine domain, although for purposes of atonement the “owner” is the person who offers it. Therefore the principle applies to it: “wherever it is, it is in the treasury of the Merciful One.” As we saw, terumah too is a kind of holy property, but it is a different kind. Its owner is the individual priest, and therefore the principle of “wherever it is…” does not apply to it.

One can suggest that sacred vessels too are a different kind of consecrated property. Their owner is not a private individual, but neither is it the Holy One, that is, the divine domain. Rather, their owner is the collective of Israel. The sacrifice itself passes from the private person, in the case of an individual offering, or from the collective of Israel, in the case of a communal offering, to the Holy One. Therefore, once consecrated, it is treated as the property of Heaven. But the sacred vessels are not meant to be offered. They are instruments of the people of Israel, used for sacred service. Therefore the sacred vessels should be regarded as being in the ownership of the collective of Israel and not in the ownership of the Holy One. The domain of the collective of Israel is not everywhere, and so the principle “wherever it is…” is not said of it. Consequently, one can steal from it.

Perhaps a hint to this can be found in the rule that sacred vessels must be acquired with communal funds; see Maimonides, Laws of the Temple Vessels 8:7. The same is true of priestly garments; see Babylonian Talmud, Yoma 35a.¹³ In light of our discussion here, the reason may be that they are meant to belong to the public as a whole. Communal offerings are likewise bought with money from the Temple treasury, but once consecrated they become property of Heaven rather than the property of the public, because they are destined to be offered to God. The public is their “owner” for purposes of atonement, not their monetary owner.

This can perhaps be explained somewhat differently, while preserving the same assumption, namely, that the owner is the public. Even if we say that the principle “wherever it is…” applies to sacred vessels as well, one can still argue that sacred vessels can nevertheless be acquired, and stolen, from consecrated property. In our essay on Ki-Tissa we discussed a case in which a transaction takes place between an individual and a collective to which that individual himself belongs. We noted there the dual aspect of such a situation. On the one hand, it is difficult to transfer the item, because the act of acquisition cannot be performed directly from that person to himself. On the other hand, it is very easy to transfer the object, because the buyer already has a kind of ownership in it. The situation here is similar. A person wishes to acquire an item from an owner that is a collective including himself, namely, the public. Our claim is that he can do this more easily than in an ordinary act of acquisition. Therefore, even if there is no removal from the domain of consecrated property because “wherever it is, it is in the treasury of the Merciful One,” since he himself is part of the owners, he can still acquire it. A very weak act of acquisition is enough.

The implication of our proposal is that one cannot steal or acquire sacrificial animals, since wherever they are they remain in the domain of the Holy One. But sacred vessels and holy items owned by the collective of Israel can be stolen and acquired. We note that this innovation, though it seems plausible to us, does not fit the commonly accepted conception of consecrated property, and it requires further examination. We offer it here only as a way of explaining the problematic position of Minchat Chinukh and those who follow him.

A Note from Property Consecrated for Temple Maintenance

According to the logic we suggested above, it should also be noted that items consecrated for Temple maintenance are not in the ownership of the Holy One but in the ownership of the collective of Israel. Therefore one would also expect that the principle “wherever it is…” should not be said about them. And indeed, in the sugya in Rosh Hashanah 6a that principle is stated with respect to the bodily sanctity of a sacrifice. But as we saw, in the sugya in Hullin it is also applied to items consecrated for Temple maintenance, such as a hen consecrated for Temple maintenance.

Combining the Two Proposed Solutions: Limiting the Extension of “Wherever It Is…”

To explain this, one might perhaps combine the two directions we have suggested. The principle “wherever it is…” is indeed stated even with respect to property consecrated for Temple maintenance, but only regarding the laws of responsibility. A person is not responsible for such consecrated property so long as it still exists in the world, because as long as it exists it is regarded as still being in the divine domain. But with respect to the laws of acquisition, one may say that property consecrated for Temple maintenance is not like altar offerings, and therefore it can indeed be transferred. For that reason it can also be stolen.

According to this proposal, we limit the principle “wherever it is…” in the case of property consecrated for Temple maintenance, and argue that it can be applied only to liability for loss, but should not be extended to the laws of acquisition, as Shitah Mekubetzet did with respect to altar offerings.

The explanation for this may be the second formulation suggested above. If it is indeed easier to acquire an object from a collective that includes the buyer, then one can say that although here the object does not leave the domain of consecrated property, nevertheless, since the owner is the public, which includes the buyer, the buyer can acquire the object even without removing it from the seller’s domain. Therefore the principle “wherever it is…” is indeed relevant to the laws of responsibility for loss, but it does not block the act of acquisition. By contrast, in altar offerings, where the owner is the Holy One, the consequences will apply both to responsibility and to acquisition.

Insights

1. We find in halakha a phenomenon of “uprooted verses,” that is, explicit commands in verses that are not included in practical halakha. We presented two examples: the Sabbath rest of one’s son, and the prohibition against seeing the sacred vessels.
2. We suggested two kinds of explanation for this phenomenon:
   a. The Sages understood that the command is not a binding legal command but an extra-halakhic norm.
   b. The command was said for its own time and not for future generations.
3. There is a prohibition against stealing sacred vessels, derived by exposition.
4. Later authorities discuss whether this also includes the ordinary prohibition of “You shall not steal.”
5. The Gemara presents a principle that consecrated property remains in the divine domain wherever it is – one cannot remove it from there: “wherever it is, it is in the treasury of the Merciful One.” This appears regarding responsibility for consecrated property that was designated and then lost.
6. From the Gemara and from Shitah Mekubetzet there emerges an extension of this principle to the laws of acquisition, according to which one cannot acquire or steal holy objects, except for terumah, which is the property of the priest. This creates a difficulty both for the unique prohibition of stealing sacred vessels and for the application of the ordinary prohibition to sacred vessels.
7. There is room to distinguish between the two prohibitions with respect to this difficulty. Perhaps the problem applies only to the ordinary prohibition and not to the unique one, which would then be understood as a prohibition against performing an act of theft upon sacred vessels.
8. We raised several possibilities for explaining the prohibition of stealing sacred vessels:
   a. The halakha may not follow the opinion that treats them as subject to theft, though this would apply only to the ordinary prohibition, since the unique prohibition was said specifically about sacred vessels.
   b. Sacred vessels are consecrated property belonging to the collective of Israel, unlike sacrifices, which belong to the divine domain, and therefore it is not said of them that wherever they are they remain in the domain of consecrated property.
   c. The principle does apply to them as well, but since they are owned by the collective of Israel, any Jew can acquire them even without removing them from the domain of consecrated property, as we discussed in our essay on Ki-Tissa.
9. This last possibility is based on a distinction between two applications of the principle “wherever it is…” in property consecrated for Temple maintenance: with respect to responsibility it applies, but with respect to the laws of acquisition it does not.

Footnotes

All of these took it for granted that there is a command regarding one’s son’s Sabbath rest, and they offered various answers for why the Gemara ignores it, and why it is needed alongside the general prohibition against directly causing minors to commit prohibitions. But the neglect of this command in the Gemara and in the literature of halakhic ruling is so striking that it is hard to be satisfied with such local answers.

In practical halakha, Maimonides, Laws of Theft 6:11, Sefer HaMitzvot, negative commandment 246, and the Shulchan Arukh, Hoshen Mishpat 376, all rule that there is indeed a negative prohibition here.