By Rabbi Yitzchok D. Frankel

Agudath Israel of the Five Towns

They placed him in confinement, to clarify for themselves through Hashem.

–Vayikra (24:12)

In the end of the parashah, we have the story of the man who cursed and blasphemed Hashem’s Name. He was brought to a din Torah and was found to be guilty, but they didn’t know what his punishment should be. They weren’t sure if he was liable for death. And even if he was, they didn’t know which way he should be put to death, as there are four types of death penalty. Rashi and the Daas Zekeinim MiBaalei HaTosafos make a comparison between the case of the mekosheish eitzim (who gathered wood on Shabbos) and the present case of the mekaleil, both of which seem to have occurred during the same period.

Rashi explains: “They placed him”–alone; they did not place the mekosheish with him. This was because both were in the same period, and they knew that the mekosheish was liable for death, as it says, “Those who desecrate it shall surely be put to death.” (Sh’mos 31:14) But it was not clarified to them which way he should be put to death. Therefore it says, “Because it was not clarified what should be done with him.” (Bamidbar 15:34) Whereas about the mekaleil it says, “to clarify to themselves.” This is because they did not know whether or not he was liable for death. (Rashi, ibid.)

Daas Zekeinim MiBaalei HaTosafos adds: “To clarify for themselves through Hashem.” The phrase “to clarify” implies to clarify everything. This was because they did not know if he was liable for stoning, which could be learned by kal vachomer from one who curses his father or mother. About such a person it is written, “He cursed his father or his mother, his blood is upon him,” [implying death by stoning]. Or, perhaps it is not proper that he should be sentenced to death by the rabbinical court, so that he will not receive atonement–for his punishment is great. When it says “exempt,” it does not mean literally exempt, for then the sinner would be benefiting from his sin. It rather means to exempt him from death by the rabbinical court, so he will not thereby attain atonement. . . . But regarding the mekosheish, they knew for sure that he was liable for death, since it says, “Those who desecrate it (the Shabbos) shall surely be put to death.” But they did not know which way to put him to death . . .

The Daas Zekeinim explains to us why they were unsure what to do with the mekaleil. It wasn’t because they did not know whether it was a serious sin or not. On the contrary, they knew that blaspheming Hashem’s Name was surely a very grievous sin, so much so that they thought perhaps the mekaleil should not be given the privilege of dying at the hands of the rabbinical court. Perhaps an atonement, a kaparah, such as this was not due to him!

But then the Daas Zekeinim says something puzzling:

This raises a difficulty here and there, according to R. Yehudah, who said that a person is not put to death unless he was informed, [previous to the sin,] which way he will be put to death. If so, how did these persons become liable for the death penalty? Perhaps [the answer is:] they were warned about all four death penalties of the rabbinical court, and thus they allowed themselves to receive all the death penalties.

But this raises a difficulty, according to the opinion holding that a warning given in doubt is not considered a valid warning, since each kind of death penalty was a warning given in doubt. And it seems forced to assume that there were so many witnesses there who warned them at the same time about all the kinds of death penalty. However, perhaps it was indeed like this, [that a lot of people were there,] for it is written here, “And all those who heard shall place their hands,” and it does not say “the witnesses.” And also about the mekosheish it is written, “The Israelites were in the wilderness, and they found a man gathering wood.” This implies that a lot of people were there. We could further answer that they, [the mekosheish and the mekaleil] were scholars, and this view holds that a scholar does not need to be warned.

Give to a wise person, and he will grow wiser.

We see that the Daas Zekeinim discusses the whole issue of how the death penalty was actually incurred, when no one yet knew what the appropriate punishment would be, and a properly detailed warning needs to be administered beforehand.

This is most puzzling, as the Gemara already resolved this very issue, speaking expressly about the mekosheish:

Regarding other cases where the Torah said they are liable for the death penalty, they are put to death only if there were a legal court, witnesses, and a warning. And only if they inform him that he is liable for the death penalty of the rabbinical court. . . . R. Yehudah says: Only if they inform him which way he will be put to death.

The first Tanna learns it from the mekosheish. And R. Yehudah says that the case of the mekosheish was a provisional ruling. (Sanhedrin 80b)

This Gemara is telling us that according to the Chachamim, the sinner does not need to be told beforehand what way he will be put to death. All he needs to know is that he will incur the death penalty for this sin. The proof is from the mekosheish: No one knew beforehand what kind of death penalty would be applicable. Yet, he was put to death nonetheless. However according to R. Yehudah, the case of the mekosheish was exceptional. He was put to death only because of a provisional ruling, i.e., a special ruling that does not apply to other cases.

This seems to solve everything. That which the Gemara said about the mekosheish could be said also about the mekaleil: According to R. Yehudah, it was a provisional ruling.

If so, why did the Daas Zekeinim reference this very Gemara, yet resolve the issue differently than the Gemara does? What was wrong with what the Gemara said?

Here is what the Taz says about the very same issue:

“They did not know if the mekaleil was liable for the death penalty.” It seems that the uncertainty was as follows: There wasn’t a proper warning, for the Gemara concludes in Sanhedrin 8a that regarding all sins, the sinner is not liable for the death penalty unless he is forewarned that he will be liable for death, and which way he will be put to death. Whereas here, it was a provisional ruling . . .

With the mekosheish, they knew that he was liable for death. But they did not know which way he would be put to death. It seems that this, too, they were unsure about, regarding the warning, i.e., they warned him in a general way that he would be liable for death. And there is a dispute over such a warning. The Sages hold that he need be warned only in a general way, that he will be liable for death. And according to R. Yehudah, they need to warn him specifically which way he will be put to death. Moshe Rabbeinu was unsure whom the halachah followed, and the answer given them was that the halachah follows the Sages.

According to R. Yehudah, who holds that this is not a warning, it seems to me that it was a provisional ruling that the mekaleil was liable, even though there was not a valid warning. So it seems to me the correct explanation. (Taz Al HaTorah)

This only compounds our problems. The Taz answers that it was a provisional ruling, yet presents this answer as his own explanation without mentioning that this is the answer of the Gemara!

Perhaps their version of the Gemara’s text read differently.

I would appreciate your thoughts on this matter. v

Rabbi Frankel can be reached at Now in print: Machat shel Yad Vayikra.


Please enter your comment!
Please enter your name here