Tza'ar Ba'alei Chaim Parshas Mishpatim

(5) When you see the donkey of your enemy lying under its burden and would refrain from raising it, you must nevertheless raise it with him.

(1) כי תראה חמור שנאך וגו׳ IF THOU SEE THE DONKEY OF HIM THAT HATETH THEE etc. — כי here has the meaning of “possibly”, “perhaps”, which is one of the four meanings which the word כי serves to express. The sense of the verse is accordingly the following: Can you possibly see his donkey crouching beneath his burden and forbear to help him? (The Hebrew word בתמיה in Rashi means “Say this in the intonation of a question”, and is nothing more than our question mark). (2) עזב תעזב עמו — The root עזב has here the meaning of “helping”. .... (3) עזב תעזב עמו THOU SHALT SURELY HELP HIM — to unload the burden (Mekhilta d'Rabbi Yishmael 23:5:4). ...

The Gemara relates: Rabban Gamliel’s donkey was laden with honey and he did not want to unload the donkey until the conclusion of Shabbat. At the conclusion of Shabbat, the donkey died of fatigue. The Gemara asks: Didn’t we learn in the mishna: He takes the vessels that may be moved on Shabbat off the donkey? Why, then, did Rabban Gamliel not unload the honey? The Gemara answers: This is a case where the honey had spoiled. The Gemara asks: For what use is spoiled honey suited? Why did Rabban Gamliel bring it? The Gemara answers: It can be used to rub on the wounds of camels. The Gemara asks: And let Rabban Gamliel untie the ropes and the bags will fall on their own. The Gemara answers: It was due to the concern that the jugs containing the honey would crack. The Gemara asks: And let him bring cushions and blankets and place them beneath the jugs. The Gemara answers: He was concerned lest they become soiled and he would thereby negate the vessel’s preparedness, i.e., the cushions and blankets would be rendered unusable. The Gemara asks: Isn’t there the matter of the suffering of a living creature? He should suffer monetary loss rather than cause the animal to suffer. The Gemara answers: Rabban Gamliel holds that causing a living creature to suffer is prohibited not by Torah law but rather by rabbinic law. .

(1) If, on the road, one meets a person whose animal is lying helpless under its load, he must help to release the animal whether or not the load is more than it can carry. This is a positive command, as it is written: "You must help him" (Exodus 23:5).

(9) One may not ride an animal on the Sabbath, lest he may come to cutting off a branch for use in guiding it. And we may not hang from an animal, nor climb upon it while it is still day in order to sit upon it on Shabbat. And we do not lean on the sides of an animal, but it is permissible [to use] the sides [of something else leaning] on the [animal's] sides . [In the case of] one who climbed the tree inadvertently on Shabbat, it is permissible to descend; volitionally, it is forbidden to descend. But with an animal, he must descend—even when volitional—on account of [the prohibition of causing] pain to animals. And we must likewise remove the load from on top of an animal on Shabbat on account of pain to animals.

(26) [In a case of] an animal that fell into a pit or into an aqueduct: If one can provide it with sustenance in its place, one provides it with sustenance until the conclusion of Shabbat. But if not, he brings pillows and bed covers and places [them] beneath [the animal]—and if it climbs out [on its own], it climbs out. [One may do this] even though he nullifies a vessel from its use—as he surely throws them into the water in the pit—since [the Sages] did not make a decree [in this case] on account of [the prohibition of causing] pain to animals. But it is forbidden to bring [the animal] up with one's hand. And likewise may we not pick up [domesticated] beasts, [wild] animals and fowl in the courtyard; but one may push them until they enter. And we may help calves and colts to walk. [But] we may not help hens that have fled, because it extracts itself from the hand and its wings get disjointed. But we may push it until it enters.

(19) 19. An animal that fell into a water canal, if the waters are deep and therefore the animal cannot be provided for in its present location, one may bring pillows and quilts and place them beneath it because of ‘tza’ar ba’alei chayim’, [agony to animals – we are commanded to not to hurt them and to look after their well-being] even though it is Mevatel Keli Me’hechano. The law of cooling an animal on Shabbos is the same as Yom Tov (Mordechai, Chapter 2 of Beitzah).

(8) My opinion on this principle of Divine Providence I will now explain to you. In the principle which I now proceed to expound ... There is a rule laid down by our Sages that it is directly prohibited in the Law to cause pain to an animal, and is based on the words: "Wherefore hast thou smitten thine donkey?" etc. (Num. 22:32). But the object of this rule is to make us perfect; that we should not assume cruel habits: and that we should not uselessly cause pain to others: that, on the contrary, we should be prepared to show pity and mercy to all living creatures, except when necessity demands the contrary: "When thy soul longeth to eat flesh," etc. (Deut. 12:20). We should not kill animals for the purpose of practising cruelty, or for the purpose of play. ...

(1) "Behold, I have given to you all of the herbs that gives seed:" ... And when they sinned and all flesh corrupted its way upon the earth and it was decreed that they would die in the flood, and because of Noach, He saved some of them for the preservation of the species, He gave them permission to slaughter and eat [animals] since their existence was for [man's] sake. And in spite of all this, He did not give them permission with regards to the soul and forbade them a limb from a living animal. And He added commandments for us to forbid all blood since it is the support of the soul, as it is written (Leviticus 17:14), "Since the soul of all flesh, its blood is in its soul; and say to the Children of Israel, 'the blood of all flesh do not eat, since the soul of all flesh, it is the blood.'" [This is all] because He permitted the body of an animal that does not speak but not the soul itself. And this is [also] the reason for ritual slaughter (shechita) - and for what they said (Bava Metzia 32:), "[the prohibition of causing] pain to living animals is from the Torah" - and this is our blessing for it: "who has sanctified us with His commandments and commanded us on ritual slaughter." And I will speak more about the matter of the commandment of blood when I get there (Leviticus 17:11-14) if God [permits].

(3) The verse also intends to warn us not to kill animals without an ulterior purpose. We are only allowed to take the life of an animal (the ones which are fit for consumption by Jews) to help us atone for our sins. The sequence of the words נתתיו לכם על המזבח are intended to demonstrate that the "gift" G'd has made us of the domesticated animals on earth carries with it some restrictions. We are not absolute owners of these animals to do with them whatever we please; rather they should serve to help us recapture our standing with the Almighty in the event that we became guilty of certain sins. We are taught in Sanhedrin 2 that if a domestic animal is guilty of an offence for which the Torah decreed that said animal has to die, it is judged by a tribunal of no fewer than 23 judges, the same number required to judge a human being, someone who has killed a human being. It is not permitted to slaughter such an animal except when one wants to consume its meat. In Deut. 12,20 the Torah is on record as permitting man to indulge his craving for meat. In other words, the Torah had to write a special verse in order to permit us to eat meat which was not intended as sacrificial meat.

(1) Response

(2) Greetings to the scholar, who engages with the laws of Mt. Horeb, the esteemed rabbi, my honored friend, the Torah chieftain, our master, Rabbi Gumprecht Oppenheim, may our Rock protect him.

(3) I received your letter, and although I do not recognize you and do not know you, nevertheless, when one comes to ask a question and speaks using the language of the sages, I respond to every questioner.

(4) The root of the question is this: A certain man, who God has graced with a large estate, has villages and forests – forests in which all the beasts of the forest prowl. May he go himself to shoot with a rifle (lit. “fire stick”) to trap game, or is it forbidden for one of Israel to do this deed, whether because it causes pain to creatures (“tza’ar ba’alei hayim”), because it violates “you shall not destroy” (“bal tashhit”), or because it is customary to regard it as tza’ar ba’alei hayim? It is explained in Tosafot on Tractate Avoda Zara, that is, in Piskei Hatosafot, and in Issur Ve-hetter 59:36, which states in the name of Rosh (R. Asher b. Jehiel) that anything medicinal does not constitute a gentile custom (“darkei ha-Emori”) and in the name Tosafot in Avoda Zara that although tza’ar ba’alei hayim is a Torah prohibition, if it is helpful in some way, it is permitted.

(5) [Answer:] In truth, Tosafot on Avoda Zara 11a, s.v. “okrin,” indicates to the contrary. This is the formulation of Tosafot: If you ask: Why doesn’t [the Talmud] ask: ‘But there is tza’ar ba’alei hayim!?’ Granted, there is no bal tashhit because one can do this to honor the king, so it is not wasteful. It is akin to burial shrouds worth a hundred coins. But how can tza’ar ba’alei hayim be permitted? One can answer that the king’s honor is different, for it is the honor of all Israel, and public honor supersedes tza’ar ba’alei hayim.

(6) It thus seems from their words that tza’ar ba’alei hayim is more severe than bal tashhit and is not permitted even in a case of need except for the sake of public honor. Go and see that Tosafot refer to this as “superseding” (“dehiya”), that public honor supersedes tza’ar ba’alei hayim. So how can one say that it would be permitted for the needs of a voluntary matter?

(7) However, Piskei Tosafot ad loc. states: “tza’ar ba’alei hayim is not forbidden except when pain is inflicted without profit.”

(8) In truth, the words of Tosafot themselves here in Avoda Zara, where their words show that the prohibition of tza’ar ba’alei hayim is more severe than the prohibition of bal tashhit, contradicts the words of Tosafot in Bava Metzia 32b, s.v. “Mi-divrei shneihem,” which states: “If you ask: If so, why do we mutilate [animals] for kings…? One may answer: The honor of the king or prince is greater, like bal tashhit which is superseded in their honor…” Thus, the prohibition of tza’ar ba’alei hayim is compared to bal tashhit.

(9) However, the words of Tosafot in Bava Metzia are against the words of Maimonides, for there in Bava Metzia, Tosafot upheld the opinion of the sage who maintains that tza’ar ba’alei hayim is a biblical prohibition, whereas bal tashhit is of rabbinic origin except the case of cutting down trees. And this is the formulation of Maimonides in the Laws of Kings 6:8: We do not cut down food trees…. Anyone who cuts one down is given lashes. This is not only during a siege, rather any time one cuts down a food tree in a destructive manner, he is given lashes. And 6:10: It is not only trees; rather, one who shatters vessels, rips clothing, demolishes a building, stops up a well, or ruin food in a destructive manner violates bal tashhit, but does not incur lashes, merely rabbinically-ordained beatings for rebelliousness. Thus, other forms of destruction, which do not involve cutting down trees, are only rabbinic violations of bal tashhit.

(10) Indeed, there is no need for us to write at length about this, because R. Israel Isserlein has already written at length, in his Pesakim U-khetavim (Terumat Ha-deshen Vol II) §105, that anything that is for man’s needs does not constitute tza’ar ba’alei hayim, and moreover, tza’ar ba’alei hayim is only applicable when one causes it pain but leaves it alive. However, to kill livestock, beasts, and all sorts of animals does not constitute tza’ar ba’alei hayim. This can also be shown from Hullin 7b: “Shall I mutilate it? It constitutes tza’ar ba’alei hayim. Kill it? It constitutes bal tashhit.” Thus, even though the response to his proposal to mutilate is that it would constitute tza’ar ba’alei hayim, he nevertheless asks if he may kill it.

(11) Thus, there is no tza’ar ba’alei hayim in the subject of this question. And there is no bal tashhit because one benefits from the pelt, and further, is not acting in a destructive manner.

(12) Furthermore, the main prohibition of bal tashhit, though rabbinic, is nevertheless rooted in the Torah’s prohibition of cutting down fruit trees. And there it is written: “For you shall eat it and not cut it down…” (Devarim 20:19). Thus, since whatever the rabbis instituted was modeled on Torah law, one may not destroy something that man can benefit from; one may not destroy and debase that benefit. Perhaps this even applies to something ownerless. However, bal tashhit does not apply to something whose loss that will not cause the loss of benefit to any man. Therefore, those animals of the forest, while they are alive, give benefit to no man. Their main benefit is in their death—through their pelts and meat. So how can we say that it is forbidden to kill them because of bal tashhit?

(13) And to suggest that it is forbidden as a permissible action that others have customarily treated as prohibited—here, too, there is not concern, for one cannot say that there is a custom to prohibit something that is uncommon.

(14) Thus far, we have addressed the legal aspects.

(15) However, I am surprised by the matter itself. We find no hunters other than Nimrod and Esau, and this is not the way of the children of Abraham, Isaac, and Jacob. Go and look, regarding the congratulation “let it be worn out and renewed” – R. Jacob Weil writes in his rulings, cited by Rema in Orah Hayim at the end of §223, that one does not say this on something made of animal skins, because “His mercy extends over all His creations” (Psalms 145:9). And even though Rema writes on this that it is weak reasoning, because it is not necessary for an animal to be killed on his behalf, as there are many pelts and skins that are already prepared, and many of them die of natural causes but can still be used for their pelts. Nevertheless, Rema concludes that many are careful about this. For how can a man of Israel actively kill beasts needlessly, simply to pass his leisure time by engaging in hunting?

(16) If you suggest [that one may hunt] because bears, wolves, and other predators are likely to cause damage, for [the Rabbis] have stated that “a wolf, a lion… whoever displays alacrity in killing them has merited” (Sanhedrin 15a) – this is mistaken as well, for two reasons: First, the law does not accord with Rabbi Eliezer with regard to a wolf, lion, bear, leopard, or panther, and even with regard to a snake, Maimonides and Raavad disagree in the Laws of Sanhedrin 5:2.

(17) Secondly, even according to Rabbi Eliezer, we maintain the view of Resh Lakish, namely, that only when [the beasts] have already killed [is it permitted to kill them], as made clear by Maimonides loc. cit.—and see Kesef Mishneh ad loc.—yet a party to the debate may still find grounds to say that this applies when they have an owner and are tame, as detailed in Sanhedrin 15b, which concludes regarding the statement of R. Shimon b. Lakish [=Resh Lakish], “We see that he maintains that they are tame and have owners.” This is also the formulation of Maimonides loc. cit.: “A lion, bear, or panther that are tame and have owners…” Thus, those which were not domesticated are not tame and are usually destructive, and so even on Shabbat it is nevertheless permitted to trample them innocuously, as detailed in Shabbat 121b and Shulhan Arukh [Orah Hayim] 316:10.

(18) Yet even this is unrelated to the present care, for in that case, when they came into a settled area, a place of human beings, and they are nearby, then during the week one may kill them, and on Shabbat one may trample them innocuously. Indeed, it is stated in Shabbat loc. cit.: “Our Rabbis taught: “If snakes came upon him—if he killed them, then it is known that they came upon him so that he can kill them….” But to chase after them in the forests, the location of their dens, when it is not usual for them to enter settled areas, there is no mitzva, and there is nothing but the pursuit of his heart’s appetites and the counsel of [the evil inclination, which] is compared to a deer.

(19) A man who needs to do so, whose livelihood is from such trapping, is not cruel. After all, we slaughter livestock, beasts, and birds and kill fish for human consumption, and why should there be a difference between kosher animals whose meat is eaten and unkosher animals through which one earns a living and eats by the sale of their pelts? All creatures were given to man for all his needs. However, for one who does not need this for his livelihood, and whose main intent is not at all for the sake of earning a living, this is cruelty.

(20) Thus far I have addressed the aspect of proper behavior, [contending] that man ought to distance himself from this. Now I say that it is even forbidden, for anyone who engages in this must enter the forests and place themselves in great danger, in places of packs of wild animals. And the Merciful One said: “Take great care of yourselves” (Deut. 4:15). And who was a greater and more expert hunter than Esau, about who Scripture attests: “Esau was a skillful hunter…” (Genesis 25:27). Yet look at what he said about himself: “I am about to die…” (ibid. 32). And no Scripture departs from its plain meaning, which is that he endangers himself each day among packs of wild beasts. So explains Nachmanides. So then how can a Jewish man insert himself into a place of packs of wild and vicious beasts? Yet even here, if one who poor and does so for sustenance, the Torah permitted it, like any maritime trader crosses the sea—for with regard to anything that is for the needs of one’s sustenance and livelihood, there is no choice. The Torah has said [about the wages of a day laborer]: “His life depends on it” (Deuteronomy 24:15). And the sages said (Bava Metzia 112a): “Why did this person ascend a ramp, dangle from a tree, and place himself at risk of death? Is it not for his wages?” But one whose main intention is not for sustenance, rather, he does to the place of packs of wild animals due to his heart’s appetite, and endangers himself, violates “Take great care of yourselves.”

(21) This is the formulation of Maimonides in Laws of Murderers and Preservation of Life 12:6: It is also forbidden for one to pass under a collapsing wall… and so too anything akin to this and other dangers—it is forbidden to pass through their place.

(22) Based on this, I now say that this entails a prohibition, as well as endangerment, and a third thing—that it causes his sins to be invoked—for this is no worse than [passing under] a collapsing wall [which, according to the Talmud, causes ones sins to be invoked before God]. Perhaps this is the intent of the Sages of the Mishna in m. Berakhot 4:4: “Rabbi Joshua says: One who passes through a dangerous place recites a short prayer and says: ‘Save, O Lord, Your people…in every time of crisis’ (‘ibur’).” And the Talmud (Berakhot 29b) asks: “What does ‘time of crisis’ mean? R. Hisda said in the name of Mar Ukva: ‘Even when You are filled with anger (evra) against them’… Some say… ‘Even when they transgress (ovrin) the words of the Torah.”

(23) According to our approach, we can understand this. One who walks in a dangerous place transgresses the words of the Torah, which states, “Take great care of yourselves.” It also causes his sins to be invoked, and consequently the Almighty is filled with anger at him—whereas any other transgression that one may do will not cause the Almighty to be filled with anger against him. But one who causes the invocation of all his transgressions is subject to the Almighty’s anger. Therefore, our Sages instructed one who must do so for his livelihood to recite this prayer for himself. But how can the prayers of one who does so in such an abhorrent manner be accepted? Thus, this activity includes a repugnant character trait, that is, cruelty, as well as a prohibition, endangerment, and the invocation of one’s sins.

(24) One who heeds me will therefore dwell safely, tranquilly, and contentedly at home and not waste his time with such things.

(25) If not for my love of the gentleman who is so renowned for his good character, I would not engage in the response to this question. But since I know that the gentleman and his entire family have an excellent reputation, I therefore must use all my power to protect his family, lest they give grounds for those who hate the gentleman—a hate derived from envy—to find something about which to complain.

(26) This will bring peace.

(27) "Ever preoccupied, but yours."