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The Israel Koschitzky Virtual Beit Midrash
The Israel Koschitzky Virtual Beit Midrash

Halakha: A Weekly Shiur In Halakhic Topics
Yeshivat Har Etzion


 

 

 

Shiur #14: Regarding a blind person's

obligation to MITZVOT*

(Part I)

HaRav Aharon Lichtenstein

 

 

            The law regarding a blind person's obligation to light Chanuka candles is mentioned neither in the Gemara nor, to the best of my knowledge, by the Rishonim. Leading Acharonim have dealt with the issue based on a responsum of the Maharshal who raised the question, some agreeing with his fundamental position and others rejecting it. It seems, however, that the final word has not yet been said, and that there is still room for further discussion. I, therefore, present the issue for renewed consideration.

 

            The Maharshal writes as follows:

 

A blind person asked me whether or not he is obligated to light Chanuka candles. For there are reasons to obligate him, since Chanuka candles were not given for the derivation of pleasure; and we do not recite the blessing "to see" them, but rather "to light" them; and we also maintain that the lighting constitutes the mitzva. Or do we say that since he is not included in the publicizing of the miracle, for he does not see, he is also not obligated to publicize it for others. This is not the same as what we learned in Megila that a blind person, even if he had never in his life seen the [heavenly] luminaries, reads the parts of the prayer preceding Shema [pores al Shema] and recites the blessing, "Creator of the luminaries." There it is different, for [the blessing] relates to the light that the Holy One, blessed be He, created in His world, and he too [= the blind person] derives benefit from the light, since others see it and guide him toward his destination and similarly regarding other uses, as it is stated there: 'It once happened that a blind person, etc.' But [Chanuka] candles, which are not for pleasure, but rather to see them in order to publicize the miracle, and this person is not fit to see – [he is] not [obligated to light].

 

Answer: If he is in a house where others are lighting and he can participate through [the contribution of] a peruta, and they will recite the blessing, this is preferable. And similarly, if he has a wife, she should light for him. But if he has no wife, and he has a house, he is required to light with the help of another person. Even though he is not fit to see, it is no worse than the mitzva of tzitzit, about which it is written, "And you shall see it," and everything depends upon seeing, for which reason a garment worn at night is excluded, but nevertheless it is binding upon a blind person, because of the superfluous words, "with which you cover yourself," as it is stated in the first chapter of Kiddushin… Surely there the seeing of others does not help him with respect to seeing the tzitzit, but nevertheless he is not exempt from the mitzva. All the more so then should he not be exempt from Chanuka candles, for others see them, and he performs through them the mitzva of publicizing [the miracle] to others who see, in which he is obligated. And do not say that there [= regarding tzitzit] it is different, and that he is [only] obligated by rabbinic decree, and the verse is merely a support, but by Torah law he is exempt from all the mitzvot. The Sages, however, obligated him in mitzvot so that he not appear as a gentile, and if he is exempt from tzitzit, he will appear as a gentile. But here regarding Chanuka candles, even if he does not light, he does not appear as a gentile because of that… This is not so, for it is only R. Yehuda who maintains that a blind person is exempt from all the mitzvot, but the law is not in accordance with R. Yehuda, as I have written in chapter Ha-Chovel. Therefore he is obligated in all the mitzvot by Torah law, and so too in tzitzit, because of the superfluous words, "with which you cover yourself." (Responsa Maharshal, no. 77)[1]

 

            It follows from the Maharshal's responsum that according to R. Yehuda – who exempts a blind person from all the Torah's mitzvot, following the second Baraita in Bava Kama 87a – a blind person is not obligated to light Chanuka candles, because the fundamental general exemption is applicable, and there is no need to set it aside on the grounds that he should not appear as a gentile. According to the Sages, however, there is room to raise a question about the matter. In practice, it is preferable to circumvent the problem by having someone else light for the blind person, but in the absence of an alternative, the blind person himself must light, for, in principle, the Maharshal, who rules in accordance with the Sages, maintains that the blind person is obligated in the mitzva. Let us consider both of the Maharshal's conclusions, the exemption according to R. Yehuda, and the obligation, albeit with reservations, according to the Sages.

 

            On the face of it, according to R. Yehuda, a blind person should be exempt from lighting Chanuka candles just as he is exempt from all the other mitzvot. This, however, is not at all clear. For the Rishonim disagree about the position of R. Yehuda.

 

The Rashba writes (Bava Kama 87a): "Rather, it seems that according to R. Yehuda, [a blind person] is entirely exempt from all the mitzvot, even by rabbinic decree, and it is only on the level of pious conduct that he is obligated." According to the Rashba, a blind person should indeed be exempt from lighting Chanuka candles.

 

However, the Tosafot in several places understand that even R. Yehuda agrees that by rabbinic decree a blind person is obligated in mitzvot. They offer two explanations (Tosafot, Eruvin 96b, s.v. dilma): "Do not be astonished that a blind person is obligated by rabbinic decree, whereas a woman is entirely exempt, for the Sages were more stringent about a blind person, since he is of a gender that is obligated. And furthermore, so that he not appear as an idolater, were he exempt from all the mitzvot."   According to the first explanation, there is certainly no more reason to exempt a blind person from lighting Chanuka candles according to R. Yehuda than there is to exempt him according to the Sages, for by rabbinic decree he is obligated in mitzvot. The Maharshal, however, related to the second explanation, and proposed that if we obligate a blind person in certain mitzvot, then even if he does not fulfill other mitzvot, he does not necessarily appear as a gentile, and so it is possible that he is exempt from those other mitzvot even by rabbinic decree.

 

In truth, however, it would appear that even according to the second explanation, a blind person should be obligated to light Chanuka candles by rabbinic decree. For the Maharshal apparently understood that we are dealing with a problem of mar'it ayin, namely, that we are concerned that the blind person will appear as a gentile, and indeed the Tosafot say "so that he not appear as an idolater." And similarly they write in Rosh Ha-Shana (33a, s.v. ha): "So that he not appear as a gentile, for if you exempt him from all the mitzvot, then he does not conduct himself as a Jew whatsoever." And so too, writes the Rosh in his Tosafot in these two places.

 

The Tosafot in Bava Kama (87a, s.v. ve-chen), however, write as follows: "But a blind person, if you exempt him from all the mitzvot, even by rabbinic decree, then he would be like a gentile, since he does not conduct himself as a Jew whatsoever." Similarly, they write in Megila (24a, s.v. mi): "But a blind person, if we exempt him from all the mitzvot, even from those that are only by rabbinic decree, then he will be regarded as a gentile." These formulations imply that we are not dealing here merely with a concern about appearances, but with the Sages' recoiling from the fact that practically speaking if a blind person is entirely exempt from mitzvot,  he will become like and live like a gentile. This possibility being utterly untenable, the Sages obligated him in mitzvot by rabbinic decree. This is also how the matter is brought in the name of the Tosafot by the Ramban (Kiddushin 31a): "If so,  you turn him into a non-Jew," and by the Rashba (Bava Kama 87a): "For were it not so, you would make him a non-Jew." According to this, it is certainly unreasonable to say that they obligated him in some of the mitzvot, but not in all of them. It is true that to change the situation so that he not be like a gentile, it should suffice to obligate him in some of the mitzvot – just as there is no such concern regarding women, even though they are exempt from time-bound positive mitzvot even by rabbinic decree, since they are obligated in the other positive mitzvot. But it is certainly difficult to assume that they cancelled the blind person's exemption regarding one mitzva, but not regarding another mitzva, for what grounds are there to distinguish. According to this formulation, then, it stands to reason that a blind person is obligated to light Chanuka candles based on his obligation in mitzvot by rabbinic decree, even according to R. Yehuda, in contrast to what the Maharshal said.

 

And furthermore, it is possible that even Tosafot's formulation in Eruvin should be understood in light of the Tosafot in Megila. For it is clear that a blind person's observance of mitzvot is not merely a counteracting of the impression that he would otherwise leave that he is a gentile, but rather a full-fledged fulfillment of an obligation. For, according to Tosafot, it is because of his rabbinic obligation that he can read the part of the prayer preceding Shema and thus discharge the obligation of the congregation. We are, therefore, forced to say that we are dealing here with a real obligation and fulfillment.[2] Thus it is more difficult to distinguish between the various mitzvot. Granted that were we talking about creating an impression – or countering its opposite - it would have been possible to understand that the Sages were satisfied with a partial and symbolic obligation. But if we are dealing with a change in the status of the blind person – and in order to allow him to discharge the obligation of others it would have been necessary to change his status – it is certainly unreasonable to say, though of course not impossible, that they changed his status regarding certain mitzvot, but not all of them. It is far more reasonable to assume that by rabbinic decree, the Sages utterly uprooted the blind person's exemption from mitzvot, and now he is obligated in all of them – including Chanuka candles – even according to R. Yehuda.

 

            It follows from what we have said that according to both of Tosafot's explanations, it is possible to obligate a blind person to light Chanuka candles, even according to R. Yehuda. Even without this, however, there is room to obligate him for an entirely different reason, and even according to the Rashba who maintains that R. Yehuda exempts a blind person from mitzvot even by rabbinic decree. For surely women ought to have been exempt from lighting Chanukah candles owing to the fact that it is a time-bound positive mitzvah, but nevertheless women are obligated – just as they are obligated in megila reading and the four cups of wine at the seder – because they too were in the miracle.[3]

 

            In parallel fashion, it should be possible to obligate a blind person in Chanuka candles for the same reason, and even according to R. Yehuda. It is true that according to Rashi, who explains in many places that women caused the miracle – as he says regarding Chanuka candles (Shabbat 23a, s.v. hayu) "because the Greeks decreed that all virgins who wish to marry must first have intercourse with the commander, and a miracle was performed through a woman" – it is certainly possible to say that a blind person's exemption remains in place, because blind people did not have a special role in the miracle, because of their exemption should be canceled. Most Rishonim, however, agree with the explanation offered by the Tosafot based on the Yerushalmi (Pesachim 108b, s.v. hayu) "that they too were in the same uncertainty,[4] that is, the same danger of being destroyed, killed and annihilated." According to them, there should be room to obligate a blind person in these three mitzvot for the same reason.

 

            It is possible, however, to question this comparison. This depends on our fundamental understanding of the position of R. Yehuda, for it is possible to understand a blind person's exemption from mitzvot in one of two ways. It may be suggested that it is connected to the circumstances in which the blind person will be forced to fulfill the mitzvot were he not exempted and the difficulties that this would involve. As we find regarding the chagiga offering that an exemption is extended to "the elderly, the ill, the young, and the very delicate, because they are unable to go up [to Jerusalem} by foot." We are not dealing with a delicate person who cannot in any way go up to Jerusalem, for if so, this is obvious and it would have been unnecessary to derive this by way of a scriptural decree, "'When you shall go up to appear before the Lord' (Shemot 34:24) – he who can go up by foot, to the exclusion of the crippled, the ill, the elderly, and the delicate."[5] Rather, we are dealing here with someone for whom it would be very difficult to go up to Jerusalem. Or as we find that an exemption is granted from bringing a korban pesach to one who is far away, because "the Torah had pity on him."[6] Or as we find that a person who would suffer distress is exempt from sitting in a sukka, even when the distress is not related to his being in the sukka, but to the difficulty that he would have in getting there, though when he gets there he will certainly be able to fulfill sitting in his sukka in a manner that he lives in his house.[7] In the same way, a blind person may be exempt from mitzvot, according to R. Yehuda, because of the great efforts that fulfilling the mitzvot would require of him.

 

Even though in the aforementioned cases, we are dealing with exemptions from specific mitzvot, each of which is derived from a scriptural decree, we do find a general exemption that is similar in nature, though of much narrower scope, in the exemption granted to women regarding positive time-bound mitzvot. For some Rishonim explain this exemption as stemming from the difficulties that women would face in fulfilling these mitzvot. As the Abudraham writes (Birkat ha-Mitzvot u-Mishpateihem): "The reason that women are exempt from positive time-bound mitzvot is that a woman is subject to her husband to care for his needs. Were she obligated in positive time-bound mitzvot, it is possible that at a time that she is performing a mitzva, her husband will instruct her to do his bidding, and if she performs the mitzva of her Creator and ignores [her husband's] request, woe to her because of her husband. And if she does his bidding and ignores the mitzva of her Creator, woe to her because of her Creator. Therefore, the Creator exempted her from His mitzvot so that she should have peace with her husband."[8] Thus, it is possible that the exemption granted to a blind person according to R. Yehuda is of a similar nature, that owing to the difficulty and the required effort, the Torah had pity on him.

 

            It is, however, possible to base a blind person's exemption on an entirely different foundation, and see the parallel not in a woman but in a deaf person. Just as a deaf person, because his ability to communicate and his functioning are limited, is regarded as excluded from da'at (understanding), both with respect to monetary transactions and with respect to mitzvot, the same may apply to a blind person, namely, that he is excluded from certain mitzvot because he is not regarded as having full da'at in their regard. R. Yehuda's exclusion of a blind person from liability for punishment and from obligation in mitzvot is not merely a scriptural decree without any rationale. Rather the exclusion, and the verse on which it is based, mean to say that in these areas a blind person is not regarded as having full da'at.

 

Even though a deaf person is more limited, for we have learned (Terumot 1:2): "The deaf person of whom the Sages have spoken in all places is one who neither hears nor speaks," and so he lacks two senses, we find a source that implies that at least regarding certain laws the absence of a single sense removes a person from the category of those who have da'at. For in the talmudic passage dealing with the mitzva of chalitza, we learn (Yevamot 104b): "Rava said: Now that you say that the declaration is not indispensable, if a mute man or woman participated in chalitza, the chalitza is valid. We have learned in a Mishna: 'A deaf man who participated in chalitza, or a deaf woman who performed chalitza, or a woman who performed chalitza with a minor – the chalitza is invalid.' What is the reason? Is it not because they are unfit for the declaration? No, it is because they have no da'at. If so, a mute man and a mute woman as well! Rava said: A mute man and a mute woman have da'at; it is their mouths that are afflicted." We see from here that according to the Gemara's initial understanding, a mute man and a mute woman are excluded from the category of those who have da'at regarding chalitza. According to this, it may be assumed that this applies not only to a mute, but to anyone who lacks a basic sense. This is stated explicitly by the Ramban (in his Chiddushim ad loc.): "Therefore they raise the objection: 'If so, [regarding] a mute man and a mute woman as well' we should say that they have no da'at, because in one sense they do not have da'at."[9] For this reason, the Ramban explains, according to one understanding of the Gemara, that the deaf person mentioned here does not hear, but he speaks. While it is true that in the end this is rejected – and therefore the Rambam rules (Hilkhot Yibbum ve-Chalitza 4:13): "A mute woman or a mute man do not perform chalitza, and if they performed chalitza, their chalitza is invalid. They are not like a deaf man or a deaf woman who performed chalitza, who are considered as having done nothing, for a deaf man and a deaf woman have no da'at" – nevertheless, it is possible that there is a distinction between a mute and a blind person, between mitzvot and chalitza, between the Sages and R. Yehuda. It is, therefore, certainly possible to explain that, according to R. Yehuda, a blind person is exempt from the mitzvot because of a deficiency in da'at.

 

TESTIMONY

            It would appear that the Rishonim disagree on this point. Let us examine the source and rationale for the position of R. Yehuda in Bava Kama (86b): "'R. Yehuda says: A blind person is not liable for shame. Similarly, R. Yehuda exempted him from exile, from lashes, and from judicial execution.' What is the reason of R. Yehuda? He learns [by way of an analogy between] 'your eyes' [and] 'your eyes' [stated with respect to] falsely testifying witnesses. Just as there, a blind person, not, so too here a blind person, not, etc." The Tosafot ask (ad loc., s.v. ma): "You may ask: Just as there [regarding testimony], robbers and slaves not, regarding shame as well they should be exempt. And if you say: A woman will prove it, for she is disqualified for testimony, but liable for shame… If so, a blind person'[s exemption] should also not be learned! It may be suggested that since he learns 'your eyes' 'your eyes,' even though 'your eyes' refers to the court, it is logical to say that the gezera shava was given regarding something that depends on seeing." Now, if we say that regarding certain laws, a blind person has no da'at, there is no room for the Tosafot's question. For we could answer simply that it is certainly unreasonable to arbitrarily compare disqualification regarding testimony and an exemption from shame, even on the basis of a gezera shava; and the entire comparison is only with respect to da'at.

 

Now, the Gemara here does not explain why in fact a blind person is unfit for testimony. See Rashi (s.v. be-eidim) who writes: "Witnesses cannot be blind, for we require sight, for if he did not see that he cut off his fellow's hand, how can he testify?" He seems to be saying that a blind person is not disqualified in his person [gavra], but simply that there is no possibility of seeing and telling. R. Akiva Eiger has, however, already raised an objection in the Gilyon ha-Shas (ad loc.): "It is astonishing to me, for surely he can testify that prior to his having become blind he saw that this person cut off his fellow's hand, and the obligation will be for his action while he was blind, and so too regarding shame, and the matter requires further study. But according to what the Tosafot say (Bava Batra 129a, s.v. iy), that, according to the [Gemara's] conclusion, a blind person is disqualified from testifying regarding a loan, as the Rosh says (ad loc) that a blind person is disqualified, because it is written: 'Or he saw,' to the exclusion of a blind person - this talmudic passage is understandable."

 

In fact, this question depends on the various opinions in Bava Batra (128a), for we learned there: "Rabbi Abba sent to Rav Yosef bar Chama: If he knew testimony for another person regarding landed property before he became blind, and he became blind, he is disqualified. And Shemuel said: He is qualified, [for] he can describe the borders. But a cloak not. And Rav Sheshet said: Even a cloak, [for] he can describe the measure of its length and the measure of its width. But a piece of silver not. Rav Pappa said: Even a piece of silver [for] he can describe the measure of its weight. An objection was raised: If he knew testimony for another person before he became his son-in-law, and he became his son-in-law; while he could hear, and he became deaf; while he could see, and he became blind; while he was clear-minded, and he became mad, he is disqualified, etc. This is an irrefutable objection to all of them." We see then that according to Shemuel, Rav Sheshet and Rav Pappa, a blind person is qualified to testify on all matters that, practically speaking, he is capable of testifying about. But their positions were rejected in light of the Baraita.

 

            The Meiri there writes: "Nevertheless, in matters that we do not need him to describe anything but to provide information about something that had happened, e.g. that one person had extended a loan to another in his presence, or that he had caused him bodily injury, or that something had happened before him, and then he became blind, even if he did not regain his vision afterwards, he is qualified [to testify], since he has da'at. As they said in tractate Gittin (23a) that he is fit to deliver a get, for we only require his testimony that it was written and signed before him, and he can testify to that, and we can rely on his testimony." We see then that according to the Meiri, even according to the Gemara's conclusion, a blind person is fundamentally qualified for testimony. However, the Tosafot and the Rosh, cited by R. Akiva Eiger, understand that in light of the irrefutable objection based on the Baraita, the fundamental position of Shemuel and the others was rejected, and a blind person is disqualified in his person. As for the proof from the passage in Gittin, the Ritva rejects it saying: "There the confirmation of deeds is by rabbinic decree, and the Sages were lenient lest the woman become an aguna." The source for this is in the Tosefta (Shevu'ot 3:6): "'Or saw' – to the exclusion of a blind person." In light of this, the Rambam rules (Hilkhot Edut 9:12): "Blind people, even if they recognize voices and know the people, are disqualified by Torah law, as it is stated: 'And he is a witness or saw' – he who is fit to see may serve as a witness." We see then that we are dealing with a disqualification of the blind person himself that is based on a scriptural decree.

 

We must, however understand the nature of the disqualification. The author of Sefer ha-Terumot (sha'ar 36, part 1, 62), after having established that an oath is taken on the claim of a blind person, even though he is disqualified to give testimony, explains: "There, regarding testimony, since he is not fit for all testimony, he is not fit for any testimony. But regarding claims, he can certainly present a claim." According to this, regarding the qualification of witnesses, there exists a law similar to the law that "he should be fit for all things," that the Rambam (Hilkhot Sanhedrin 4:8) sets for the ordination of judges. It is not clear, however, whether the author of Sefer ha-Terumot put forward this requirement based on logic, or whether this is the way he understood the scriptural decree, even though he does not cite it. A similar argument – though without requiring that he be fit for "all" testimony – is put forward by the Yad Rama (Bava Batra, chap. 8, no. 118), and it is clear from him that we are dealing with an exclusion based on a verse: "That a blind person is disqualified to give testimony, we learn from the verse, 'He is a witness, or he saw or he knew.' Even in testimony where there is knowledge without sight, that is, wherever we read 'or saw,' we read 'or knew,' and wherever we do not read 'or saw,' we do not read 'or knew.'" According to other Rishonim, however, such as the Rambam and the Rosh, who do not mention the requirement that he be fit for all matters, we must understand the nature of the disqualification.

 

It seems that it is possible to suggest two alternatives. We may be dealing with a technical disqualification, based on a scriptural decree. This might be the way to understand the words of R. Sherira Gaon, who in a responsum that overviews those who are disqualified to testify, writes: "A deaf person, an idiot, and a minor, because they lack da'at; a blind person because he lacks seeing and telling."[11] It is more reasonable, however, to say that underlying the scriptural decree there is a logical argument: A blind person is excluded from giving testimony because of a weakness in his da'at. While it is true that, according to the Sages who disagree with R. Yehuda, with respect to transactions and mitzvot, a blind person does in fact have da'at, with respect to testimony – where we are not dealing with calculated planning and decision making that may proceed according to the individual's pace, but with a need to understand what is happening in a fluid and transient situation – the level of da'at required is higher; and a blind person does not meet that standard. Moreover, it seems that this is the way to understand the views of Sefer ha-Terumot and the Rama. For the Rama merely explains why testimony based upon knowledge without sight is disqualified in the case of a blind person, saying that he is not fit for testimony based upon sight. But the question remains: Why is he disaqualified for testimony based upon sight? For we are forced to say that we are not dealing with a mere physical limitation, but with a halakhic disqualification. For were it merely a limitation, it would be impossible to disqualify a person who once saw but then was blinded for the reason that he must be fit from beginning to end, for then by right he was fit even at the beginning. Rather, we are forced to say that this is a real disqualification. And it seems that this disqualification, even according to Sefer Terumot and the Rama, is connected to the weakness of his da'at.[11]

 

To be continued.

 

FOOTNOTES:

* Originally appeared in hebrew, HaDarom 50, Nissan 5740, pp. 184-205.

[1] The talmudic passages cited in the responsum are found in Bava Kama 86b–87a; Megila 24a; and the passage dealing with a blind person's obligation regarding tzitzit is not in Kiddushin, but rather in Menachot 43a, Zevachim 18b, and Shabbat 27b. The Maharshal discusses the position of R. Yehuda regarding actual practice in Yam shel Shelomo, Bava Kama no. 20.

 

[2] The Rashba (Bava Kama 87a) maintains that even if a person is not really obligated in a mitzva, but he is obligated and fulfills the mitzva on the level of pious conduct, he can discharge the obligations of others with respect to the blessings of Shema which are only of rabbinic origin. According to him, then, there is no proof. Most Rishonim, however, disagree with the Rashba, and the Tosafot certainly did not accept his position.

As for the possibility that an obligation stemming from concern about impressions or suspicions assumes the nature of a full-fledged obligation, we must examine parallel cases. Clearly, however, this is not impossible. See, for example, Orchot Chayyim (Hilkhot Chanuka, 13), who brings two opinions regarding a person who lights Chanuka candles at the two entranceways to his house – the obligation being based on suspicion, as is explained in Shabbat 23a – whether he recites a blessing over the second lighting.

 

[3] These three mitzvot are mentioned in the Gemara – Shabbat 23a, Megila 4a, and Pesachim 108b. Rabbenu Tam – Sefer ha-Yashar, responsa, no. 70, 4 – also obligates women to eat three Shabbat meals and to break bread on Shabbat over two loaves for this reason. Rabbenu Tam, however, adds a second reason: "And furthermore, a positive rabbinic commandment is equally [binding] upon all." This argument requires further study, for, as has been noted by R. S.P. Rosenthal in his notes ad loc., the Gemara only obligates women in megila reading and Chanuka candles because they too were in the miracle. Indeed, the posekim who cite Rabbenu Tam's position omit the second reason. It seems that Rabbenu Tam refers exclusively to mitzvot that stem from a Torah framework that obligates women, e.g., Shabbat, but not to mitzvot that are entirely by rabbinic decree.

 

[4] Yerushalmi, Megila 2:5. The Yerushalmi does not talk in terms of an obligation falling upon a woman to fulfill the mitzva, but rather about an obligation falling upon others "to read before women and children."

 

[5] Rambam, Hilkhot Chagiga 2:1. This ruling is based on a passage in Chagiga 4a. Rashi explains: "Mefanki – who do not walk without shoes." According to him, the exemption granted to the delicate is different from that granted to the elderly and the ill. The leniency granted to the delicate according to Rashi is even more striking than that according to the Rambam.

 

[6] Pesachim 92b. This formulation was stated in the Gemara according to Rav Nachman who maintains that bedi'eved, if someone was far away, but a korbon pesach was slaughtered and its blood was sprinkled for him, he has fulfilled his obligation. Thus rules the Ramban (commentary to the Torah, Bamidbar 9:10). But the Rambam (Hilkhot Korban Pesach 5:3) rules in accordance with Rav Sheshet that he has not fulfilled his obligation.

 

[7] If the actual sitting in the sukka is accompanied by distress, it may simply not be defined as sitting in a sukka, for it is lacking the element of sitting in a sukka as one lives in a house. This matter may depend on the controversy among the Rishonim whether or not a blessing is recited when one sits in the sukka on the first night of Sukkot in distress. According to those who obligate a blessing, we must say that distressful sitting is nevertheless sitting, but one who is distressed is exempt from such sitting. According to those say that one is not obligated to recite a blessing in such circumstances, we may not be dealing with a simple exemption, but rather distressful sitting may not be considered sitting. If this is so, then it does not parallel our case. The Halakha has been decided, however, that even distress connected to the efforts made to reach a sukka exempt a person from sitting in a sukkah, even if the actual sitting is distress-free – see Shulchan Arukh, Orach Chayyim 640:4, and Magen Avraham, 639 (beginning). This already is similar to our case.

 

[8] It is possible, however, that according to the Abudraham we are not dealing with a leniency granted to a woman in consideration of her convenience, but rather with sensitivity to the importance of peace as a value, for he adds: "And greater than this we find that the great Name that is written in holiness and purity is erased in the waters in order to establish peace between a man and his wife." This is also the implication of a responsum of Maharam Chalave: "The reason regarding these is that they are exempt because of the ways of peace, for a woman is subject to her husband to care for his needs" (printed in Shitat ha-Kadmonim al Masekhet Bava Kama, ed. Rav M.Y. Blau, p. 334).

 

[9] The Ramban speaks here of "one sense," but it seems to me that this does not include one whose olfactory sense is deficient, for it is not as vital for functioning and communication as the other senses. The fact that there is no special term, neither in Halakha nor in Hebrew in general, to describe a person with such a disability, seems to be instructive.

 

[10] Cited in Otzar ha-Geonim, Sanhedrin, sec. 511. R. Sherira Gaon's words may be based on the Gemara in Arakhin  (18a): "It is different there for the verse states: 'Or see if he does not tell' – the Torah made it dependent upon seeing and telling, and here there is." It should be noted that the Gemara there does not bring the verse in order to offer the source of the disqualification regarding a blind person, but rather to explain that a seeing person who became blind, and then his sight was restored, is qualified to give testimony, because there was fitness both at the beginning and at the end, and we do not require that he be fit from the beginning to the end.  

 

[11] It is possible to develop a parallel discussion regarding the testimony of a mute, if we understand, as did Rabbenu Tam (cited by Tosafot, Bava Batra 40a, s.v. mecha'a and parallels), that it is invalid, even if testimony given in writing is valid. See Ketzot ha-Choshen, 46, no. 19, who disagrees with the view of the Shakh (46, no. 93) that a mute is qualified to sign deeds, and says that he is disqualified because of a disqualification in his person, even according to those Rishonim who disagree with Rabbenu Tam. Tosafot Rid, Gittin 71a, says more or less the same thing. According to them we can discuss whether a mute is disqualified because of weak da'at, similar to the Gemara's initial understanding. See Rosh, Bava Batra chap. 8, no. 24, who in fact compares a blind person to a mute. Or perhaps he is disqualified because of a separate scriptural decree. See Tosafot ha-Rashba, Ketubot 20a, s.v. kotev, who brings in the name of his teacher (the Ri) a doubt regarding the validity of a deed signed by a mute. When explaining why it should be invalid, he does not mention a disqualificaiton of the mute in his person, like the Ketzot ha-Choshen, but only that the mute is not fit for examination, and so it cannot be said that his testimony is regarded as if it had been examined in a court. As for the uncertainty, both regarding a blind person and regarding a mute, there may be room to resolve it from the fact that a mute is fit to testify on behalf of a woman (that her husand is dead) (Gittin 71a),  and from the fact that a blind person is fit to testify that a get had been written and signed in his presence (Gittin 23a). It would seem that the reverse is also true. And indeed, according to the Ramban (Chiddushim, Gittin 9a, see addenda), a mute is qualified to testify that a get had been written and signed in his presence (in contrast to the position of the Rivash which was accepted as law by the Rema, Even ha-Ezer, 142:7; and it is possible that even according to the Rivash, the problem lies in the act of testifying and not a disqualification in the mute's person; see Bet Shemu'el, no. 11). It stands to reason – though I do not find the law in the Rishonim – that a blind person is qualified to testify on behalf of a woman, for example, that he had heard from another witness that her husband had died, or that he had once seen, but later became blind. All this is more reasonable if we understand that we are not dealing with a deficiency of da'at, for a disqualification based on da'at should apply in these areas as well. This is supported by the fact that a deaf person who does not speak is in fact disqualified. This, however, is not absolute proof, for it is certainly possible that even if the disqualification is because of a weakness of da'at, it is possible that in these areas we are satisfied with a level of da'at that suffices for transactions, and do not require the special level of da'at that is necessary for all other testimony.

 

Translated by David Strauss. This version has not been reviewed by Harav Lichtenstein.

 

 

 
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