Contemporary Mechir Kelev Questions

Question #1: Practical applications of Mechir Kelev

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“Are there any practical applications of the mitzvos of esnan zonah and mechir kelev that apply before the Beis Hamikdash is rebuilt?”

Question #2: Unusual Rashi

Stew Dent asked me the following question:

“Someone told me that there is a comment of Rashi in this week’s parshah that does not follow the accepted halachah. Is this true? Why would Rashi explain a pasuk not according to the accepted halachah?”

Question #3: Doug from the Outback

Doug, originally from the Outback, asked one of the most unusual questions of my rabbinic career:

“Rabbi, I am a recent baal teshuvah, and I discovered that the Torah prohibits offering a korban of an animal that was once exchanged for a dog. Although this problem should not be germane when we have no Beis Hamikdash, I believe I created such a problem, and I want to rectify the situation. I grew up in a rural area, where my folks still live. They own sheep and other livestock. My folks, like all their neighbors, own watchdogs, sheep dogs, and a few pet dogs, one of which, Charlie, was always regarded as mine. A neighbor’s child had taken a liking to Charlie, and, before I left home for yeshivah in Israel, I wanted to give Charlie to the neighbor, figuring that this child would provide Charlie with a good, loving home, and plenty of attention. My neighbor insisted on giving us something in return for Charlie – a yearling lamb — which I accepted.

“Although I understand that I did nothing wrong in exchanging Charlie for a lamb, I also understand that this lamb is no longer kosher for a korban. I am concerned that this lamb may get confused with the other lambs and sheep on Dad’s ranch, and then none of them will be usable for korbanos. May I have them brand the lamb, so that it does not get confused with the other lambs on the ranch? After all, it would be nice to be a purveyor of animals for korbanos in the rebuilt Beis Hamikdash!”

Answer:

I am quite certain that I have not been asked previously about the mitzvah of mechir kelev, which is mentioned in this week’s parshah. To quote the Torah:

Lo savi esnan zonah umechir kelev beis Hashem Elokecha lechol neder, ki so’avas Hashem Elokecha gam sheneihem, “You shall not bring the gift of a harlot or something exchanged for a dog to the house of Hashem your G-d as a donation, for both of them are despicable to Hashem, your G-d (Devarim 23:19). The animal, or item, bartered for a dog is called mechir kelev, and this term is also used to describe the prohibition. Before answering the above questions, we need to discuss the basic laws of this mitzvah.

If someone exchanged a dog for a lamb, a calf, or some doves, none of these animals may be used any longer as korbanos; and the same is true if he exchanged a dog for flour, wine or oil: they may no longer be used for korbanos (Temurah 30b).

However, the prohibition applies only to the actual item that was exchanged for a dog. If someone sold a dog, and then used the cash to purchase a lamb, this lamb may see service as a korban (see Temurah 30b; Aruch Hashulchan He’asid 56:18).

Shinuy – the item changed

What if the original exchanged item has undergone major modification? Is there still a prohibition of mechir kelev?

The Gemara (Temurah 30b) records a dispute between Beis Shammai and Beis Hillel whether an esnan zonah or a mechir kelev that underwent a permanent physical change is still prohibited to be used as a korban. According to Beis Hillel, only an esnan zonah or a mechir kelev that appears as it originally did, or could be converted back to its original appearance, is prohibited, but not if it has been processed into a different form (see Minchas Chinuch 571; Aruch Hashulchan He’asid 56:23). Thus, for example, if grain, grapes or olives were used either as an esnan zonah or as a mechir kelev, and then the grain was ground into flour, the grapes were pressed into wine or the olives were crushed into oil, the resultant flour, wine and oil may be used for korbanos, since they have undergone a permanent transformation. This change is called a shinuy.

Beis Shammai disagrees, contending that a transformation, even a permanent one, does not remove the stigma of the item being an esnan zonah or a mechir kelev. This approach contends that grain, grapes or olives used as an esnan zonah or a mechir kelev remain prohibited forever as korbanos, even after they have been processed into flour, wine or oil.

What is the basis of the dispute between Beis Hillel and Beis Shammai? It is based on a dispute regarding how one understands the end of our verse: Lo savi esnan zonah umechir kelev beis Hashem Elokecha lechol neder, ki so’avas Hashem Elokecha gam sheneihem. The Gemara (Temurah 30b) notes that the words gam sheneihem, literally, “for both of them,” appear to be redundant, which provides basis for deriving halachos from the seemingly extra words of the Torah. Both Beis Shammai and Beis Hillel interpret the word them in the verse to mean that the offspring of a ewe or cow that became an esnan zonah or a mechir kelev may be offered as a korban – the stigma of esnan zonah or mechir kelev is restricted to the animal that was, itself, presented as a gift or exchanged, not to its offspring. The offspring is permitted, unless the original “business deal” of esnan zonah or mechir kelev specified that the unborn offspring was included in the transaction of the esnan zonah or the mechir kelev (Minchas Chinuch 571; Aruch Hashulchan He’asid 56:23).

Beis Shammai explains that the additional word gam, “for,” expands the items included in the prohibition of esnan zonah and mechir kelev to teach that even if the original esnan zonah or mechir kelev became transformed permanently, it remains prohibited. Thus, Beis Shammai derives from the word gam that the grain, grapes or olives used as an esnan zonah or a mechir kelev remain prohibited as korbanos, even after they have been processed into flour, wine or oil.

Beis Hillel, on the other hand, holds that the word them in the verse teaches both that the offspring of an esnan zonah or mechir kelev mother may be used as a korban and that an esnan zonah or a mechir kelev that underwent a change become permitted as a korban. Thus, Beis Hillel derives two laws from one extra word of the verse, and no law from the other extra word, which is unusual. The Gemara notes this difficulty with Beis Hillel’s approach, but does not resolve it. Nevertheless, the authorities assume that the halachah is in accordance with the opinion of Beis Hillel, as it usually is (Rambam, Hilchos Issurei Mizbeiach 4:18).

An obscure Rashi

At this point, I would like to examine Stew Dent’s question, quoted at the beginning of our article:

“Someone told me that there is a passage of Rashi in this week’s parshah that does not follow the accepted halachah. Is this true? Why would Rashi explain a pasuk not according to the accepted halachah?”

Rashi explains that the word gam teaches that if someone gave wheat as an esnan zonah or a mechir kelev and it was then processed into flour, the prohibition remains intact, and the flour cannot be offered as a korban. Thus, Rashi explains the verse in a way that follows Beis Shammai’s opinion. The Ramban questions how Rashi can explain the verse in accordance with Beis Shammai, when the halachic conclusion follows Beis Hillel.

One of the answers provided to explain Rashi’s opinion allows much food for thought. The Mizrachi contends that Rashi follows Beis Shammai’s opinion since the Gemara raises a question on Beis Hillel’s opinion that it does not resolve. Thus, Beis Shammai’s ruling is the approach that fits the verse with more clarity. According to the Mizrachi, this means that, in this instance, Rashi disputed the halachic conclusion of the other authorities and ruled according to Beis Shammai. Alternatively, Rashi felt it more important to explain the Chumash in a clearer way, regardless of the halachic ramifications (Sifsei Chachamim).

Thus, indeed, Stew’s question is very much in order.

Which of the nineteen?

The Gemara discusses the following case: Reuven owned ten lambs, whereas Shimon owned a dog and nine lambs that were smaller or otherwise less valuable than Reuven’s ten lambs. The two of them agreed to trade Reuven’s ten lambs in exchange for Shimon’s  dog and nine scrawny lambs. The Gemara asks whether any or all of these lambs are now prohibited as mechir kelev.

The Gemara concludes as follows: The nine scrawny lambs that were swapped along with the dog may be used for korbanos, whereas the ten lambs that were received in exchange all qualify now as mechir kelev and are therefore prohibited as korbanos.

Why is this so? The answer is that, since the dog is clearly worth more than any of the lambs, part of the value of the dog was included in the exchange differential when ten more expensive lambs were traded for nine of lesser value. Therefore, each of the ten is considered to have been exchanged, albeit only partially, for a dog, and this is sufficient to confer on them the status of mechir kelev (Temurah 30a). However, the nine scrawnier lambs were never exchanged for a dog – they were on the same side of the deal as the dog.

Similarly, in a case where two brothers divided an estate in such a way that one received a lamb while his brother received a dog, the lamb is now considered a mechir kelev, prohibited for a korban (Temurah 30a).

What is prohibited?

Someone who shechted (slaughtered) either an esnan zonah or a mechir kelev as a korban, or performed zerikah or haktarah, putting parts of these animals on the mizbeiach, the altar, is subject to the punishment of malkus for violating the Torah’s prohibition (Minchas Chinuch 571).

It is curious to note that, although one may not offer an esnan zonah or a mechir kelev as a korban, someone who declares them to be a korban does not violate any technical prohibition of the Torah. Furthermore, it is permitted to declare these animals as property of the Beis Hamikdash (bedek habayis), in which case, the treasurers of the Beis Hamikdash sell the esnan zonah or the mechir kelev and use the money for repairs in the Beis Hamikdash. This is permitted, since the esnan zonah or the mechir kelev will not be used for a korban.

One prohibition or two?

Are esnan zonah and mechir kelev two different prohibitions, lo saaseh commandments, of the 613 mitzvos of the Torah, or are they counted together as one lo saaseh commandment?

This matter is the subject of a dispute between rishonim. The Rambam contends that esnan zonah and mechir kelev are counted together as one of the 613 mitzvos of the Torah, whereas the Ramban contends that they are counted as two different mitzvos. The practical dispute between them is whether someone who offered both an esnan zonah and a mechir kelev at the same time receives punishment for violating two different offenses of the Torah, which means that he incurs two sets of malkus, or whether he is punished with malkus only once.

Mitzvos other than korbanos

The opening question of our article was: “Are there any practical applications of the mitzvos of esnan zonah and mechir kelev that apply before the Beis Hamikdash is rebuilt?” I would like to first expand this question a bit. Do the mitzvos of esnan zonah and mechir kelev apply to any laws other than korbanos?

The answer is that the prohibitions of esnan zonah and mechir kelev are not restricted to the korbanos offered on the mizbeiach in the Beis Hamikdash, but extend to several other mitzvos of the Torah. For example, one may not bring bikkurim, brought of the seven types of produce for which Eretz Yisroel is celebrated, from produce that has the status of esnan zonah (Yerushalmi, Bikkurim 1:6; Aruch Hashulchan He’asid 56:22). This is because bikkurim are also brought to the Beis Hamikdash, and the Torah states: “You shall not bring the gift of a harlot or something exchanged for a dog to the house of Hashem, your G-d.”

The mitzvos of esnan zonah and mechir kelev apply also to items used to decorate the Beis Hamikdash itself, such as the gold plate applied to its walls (Temurah 30b). Some authorities contend that a parah adumah may also not be from either an esnan zonah or a mechir kelev, since the Torah calls parah adumah a chatas, a sin offering (Minchas Chinuch 571). There is also discussion about whether an eglah arufah may be from either an esnan zonah or a mechir kelev, since the Torah says that its purpose is to atone, similar to a korban. However, the halachic conclusion is that an esnan zonah or a mechir kelev calf may be used for the mitzvah of eglah arufah (Minchas Chinuch #571).

A shul donation

Do the mitzvos of esnan zonah and mechir kelev have any practical application today? In actuality, there is a halachic ramification of these two mitzvos that is applicable today. The halachah is that the prohibitions of esnan zonah and mechir kelev both apply to an item donated for use in a shul (Rema, Orach Chayim 153:21). This is understood to mean that the Torah’s prohibition “You shall not bring the gift of a harlot or something exchanged for a dog to the house of Hashem, your G-d, as a donation” should be applied to any house of G-d, even a shul or a Beis Medrash. Therefore, a candelabrum or other item that was once exchanged for a dog, cannot be used in a shul or as building material for a shul (Minchas Chinuch 571:2). However, if someone sold a dog for money, the money received may be donated to the shul, since the money itself is not being used.

We are now ready to analyze Doug’s question. Doug correctly noted one of the interesting aspects of mechir kelev: It is permitted to trade something for a dog, yet the item received in exchange becomes prohibited as a korban. This juxtaposes to esnan zonah, which is banned only when the gift was in exchange for an illicit relationship (Temurah 30a).

Korbanos from outside Eretz Yisroel

Doug is also correct that korbanos may be brought from animals from outside of Eretz Yisroel (Parah 2:1; Temurah 21a; Rambam, Hilchos Maasei Hakorbanos 18:1). Therefore, any sheep in Dad’s flock that are unblemished are all valid for korbanos, at least until the introduction of a mechir kelev into their midst.

Went along with the herd

Doug is also correct that if one animal that is a mechir kelev was in a large herd of cattle, and one does not know which one is the mechir kelev, none of the animals in that herd may be offered as korbanos (Mishnah, Temurah 28a). Thus, there is a basis for his concern that the introduction of one mechir kelev could invalidate his father’s entire flock from use for korbanos.

Conclusion

The Sefer Hachinuch explains that although we never know why Hashem commanded us to observe specific mitzvos of the Torah, we can, nevertheless, derive a moral lesson, a taste, of what the mitzvah teaches. The Ramban presents a very nice explanation why the animals acquired by way of esnan zonah and mechir kelev may not be used as korbanos. Often, it happens that a person performs activities that are unacceptable, but feels that he can redeem himself by donating a percentage of his profits to a good, charitable cause. In his mind, he has now justified his misdeeds, because of the mitzvah he performed afterwards. By prohibiting esnan zonah, the Torah demonstrates that this is completely unacceptable. A person must face the sinful nature of his actions and not try to create an excuse with which to cover them up. Similarly, says the Ramban, those who use dogs for hunting and for other ill-advised activities may want to donate their exchanged value as atonement for their own misdeeds. The Torah wants it to be clearly understood that such donations are, themselves, misdeeds and are unacceptable; the perpetrator cannot attempt to hide his sins behind his charitable activities.

 




Sifting the Makom HaMikdash

Now that the “Three Weeks” has begun, I am sharing with you my reflections on an appropriate halachic topic.

Sifting the Makom HaMikdash

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Recently, someone asked me a shaylah that involves what is probably one of the most heart-breaking issues I was ever asked. The question was: “Are there any halachic issues involved in sifting through the earth removed by the Waqf from the Makom HaMikdash?”

To explain this shaylah, I will first explain what has happened, then discuss the halachic issues involved — and finally explain the answers. There is also a fascinating halachic-architectural issue that I noticed while studying photographs of the Moslem construction, which I will discuss at the end of this article.

During the past many years, the Waqf, the Moslem “Trust” that controls the holiest place on earth, the Har HaBayis, has been making major “renovations” there, including the construction of yet another mosque – this one located near the Shaarei Chuldah, which is the southern entrance to Har HaBayis. These gates are called Shaarei Chuldah because Chuldah the Prophetess stood between these two gates and admonished the Jews to do teshuvah.

For clarification purposes: The Kosel HaMaaravi where we daven is part of the Western Wall of the Har HaBayis, known in English as “the Temple Mount,” which is the top of the mountain called Har HaMoriah. The Beis HaMikdash included open courtyards as well as the structure that stood on the Har HaBayis, but occupied only a small area of the mountain. Although the Har HaBayis has much more kedusha than that of Yerushalayim, the Beis HaMikdash has much greater kedusha than that of the Har HaBayis. Someone entering the area where the Beis HaMikdash once stood is chayov kareis, an extremely severe punishment.[i] The Mishnah (Keilim 1:8-9) lists seven levels of kedusha above that of Yerushalayim — the highest being that of the Holy of Holies, the Kodesh HaKodashim area of the Beis HaMikdash, that only the kohen gadol may enter, and then, only to perform the service on Yom Kippur.

As we said, the Har HaBayis has far less sanctity than the Beis HaMikdash. Nevertheless, most contemporary poskim prohibit ascending the Har HaBayis. A minority of poskim permit entering areas of the Har HaBayis that are not part of the Beis HaMikdash in order to daven or perform a mitzvah, but only after one has performed certain taharah procedures, including washing one’s self thoroughly, making certain that one has no chatzitzos (interrupting substances on one’s body), and immerses oneself in a mikveh. All agree that it is prohibited to enter any part of the Har HaBayis if one is tamei with what halacha calls tumah hayotzei migufo, which includes people who are baalei keri, zav, zavah, niddah and yoledes.

The Moslem construction

The Moslem construction is without any permits and is illegal. However, the Israeli authorities refuse to interfere, citing concerns about violence! One of the Waqf’s goals is to obliterate any remnants of the Batei HaMikdash from the Har HaBayis so that they can persist with their lies that Jews never lived in Israel, and that the Batei HaMikdash never existed. The Waqf has removed hundreds of truckloads of “debris” from the Har HaBayis, which they dump in the Kidron Valley and other sites around Yerushalayim.

With the help of volunteers, Israeli archeologists are painstakingly sifting through the rubble removed from the Har HaBayis, to look for artifacts. (Thus, there is no halachic concern of ascending to the Har HaBayis.) Someone asked me whether he can volunteer for this work, citing the following potential shaylos:

  1. Is there a halachic concern that in the unearthing of these items someone is receiving personal benefit from property of the Beis HaMikdash, thus violating the severe Torah prohibition called me’ilah.
  2. Since we are all tamei, is there concern that one might be rendering impure (i.e., making tamei) property or the stones of the Beis HaMikdash?
  3. What are we required to do with stones or earth that were originally part of the Beis HaMikdash or the Har HaBayis?
  4. The remnants being unearthed include bone fragments, some of them human. This leads to two specific questions: (a) May a kohen work in this project? (b) Is there a halachic concern of mistreating the dead, since these human remains will not be buried afterwards, but will be stored and used for scientific research and study?
  5. Some artifacts that surface are clearly from what were once idols. Is there a halachic requirement to destroy them? Is it the finder’s responsibility to destroy them, something which the archeologists do not permit?

The archeological finds

Now some background on what the search is revealing, so that we can explain the halachic issues raised. Everything found on the Har HaBayis has a dark gray-ash color, rather than the typical white limestone color of Yerushalayim earth. This is because the fires of the destructions that transpired discolored the Har HaBayis earth.

Every bucketful of sifted earth contains numerous historical items, including coins, pottery and glass fragments,  arrowheads and other primitive weapons and pieces of human or animal bone. Coins unearthed date from as early as the second Beis HaMikdash to as late as the period of Napoleon III (mid-nineteenth century). The pieces of animal bone are presumably from what people ate there – possibly, leftovers from korbanos, but also leftovers of non-Jewish meals of the last centuries.

Other remnants unearthed are connected with the churban, such as Babylonian and Roman arrowheads, and Roman catapult projectiles, all sad reminders of the Jews who died there during the two churbanos.

Probably a greater reminder of the churban is the general attitude of the Moslems, who, in effect, rule over the Har HaBayis today. One would think that the Moslems would treat the Har HaBayis with some level of sanctity, since they claim that it is one of their holy sites. Unfortunately, this is not true. The workers loiter and smoke there, and children play soccer. Their chief concern seems to be that Jews not pray there.

We can now begin to answer the questions raised above:

Beis HaMikdash property

Question #1: Is there a halachic concern that in the unearthing of these items someone is receiving personal benefit from property of the Beis HaMikdash thus violating the severe Torah prohibition called me’ilah.

Much broken pottery has been found among the artifacts. These items are of great archeological curiosity because they indicate who used the Har HaBayis and ate their meals there over the millennia. Halachically, we know that kohanim ate meat of the holier korbanos only in the Beis HaMikdash area. After cooking these korbanos, the halacha required that the earthenware pots used be broken in a holy area of the Beis HaMikdash.[ii] The shards discovered may indeed be remnants of these vessels. However, these earthenware pieces have no sanctity, since all holy vessels were manufactured from metal only.

Remnants of holy vessels

Many types of holy vessels, such as bowls, baking dishes, forks, and numerous other items were used in the service in the Beis HaMikdash. What is the halacha if someone found a usable metal item that might be one of the holy vessels of the Beis HaMikdash, or something that might be a remnant from the mizbayach (the altar)? Is there a prohibition of me’ilah in using these items?

Because of complicated halachic issues, the poskim dispute whether one would violate me’ilah in such a case. Allow me to explain. Based on a pasuk in Yechezkel,[iii] the Gemara presents us with a halachic concept referred to as “ba’u peritzim vichilaluhu” – when the lawless entered, they removed its sanctity, meaning that under certain circumstances, misuse of Beis HaMikdash vessels defiles them and removes their kedusha.[iv] The Rishonim dispute when this concept applies. The Baal HaMaor explains that when the Hellenized Jews used the mizbayach of the Beis HaMikdash inappropriately (during the events prior to the Chanukah story), this defiling removed the sanctity from the stones of the mizbayach. In his opinion, the other vessels of the Beis HaMikdash still maintain their sanctity, and, furthermore, only Jews can cause the kedusha to be removed, not gentiles. Thus, according to the Baal HaMaor, someone who uses a vessel of the Beis HaMikdash today violates the severe prohibition of me’ilah. The Ramban disagrees with the Baal HaMaor, explaining that when the gentiles entered the Beis HaMikdash to destroy it, they profaned the sanctity of the building and its vessels. In his opinion, someone who subsequently made use of these vessels for his own personal purposes would not violate any prohibition of me’ilah. As a result of this dispute, one should not use a metal utensil found in the Har HaBayis ruins, because of the possibility of committing me’ilah, based on the Baal HaMaor’s stricter opinion.

Question #2: Since we are all tamei, is there concern that one might be profaning (i.e., making tamei) property or the stones of the Beis HaMikdash?

I could find no halachic literature directly discussing this shaylah. There is a prohibition of making something tamei in the Beis HaMikdash.[v] However, I am unaware of any halachic source that prohibits making these items tamei once they have been removed from the Beis HaMikdash grounds. Furthermore, stones themselves do not become tamei.

Question #3: What are we required to do with stones or earth that were originally part of the Beis HaMikdash or the Har HaBayis?

Destroying the Beis HaMikdash (chas veshalom)

To destroy any part of the Beis HaMikdash violates a Torah prohibition.[vi] This includes removing a stone from the mizbayach or from any other part of the Beis HaMikdash with the intent of destroying it.[vii] To destroy items that belong to the Beis HaMikdash, even those that are not used for a holy purpose (kodashei bedek habayis), or to intentionally destroy part of the Har HaBayis  is prohibited miderabbanan.[viii]

Is there a responsibility to bury the broken stone from the Beis HaMikdash or from the Har HaBayis?

The halacha is that damaged stone from the Beis HaMikdash or its vessels must be buried, just as we bury worn-out sifrei Torah.[ix] Thus, the halacha requires that stone or other remains from the Beis HaMikdash be respectfully buried. Unfortunately, today, the stone and other remains that have no archeological value are simply abandoned at the worksite.

Does the earth from the Har HaBayis have sanctity?

The Mizbayach Adamah,[x] whose author was the rav of Yerushalayim during part of the eighteenth century, discusses a shaylah whether grapes grown on the Har HaBayis are prohibited because of me’ilah. From his discussion, it is clear that he considers all earth of the Har HaBayis to have kedusha that might create a prohibition of me’ilah. Thus, the same concerns I raised above about the stone remains exist concerning the earth itself, and it must be buried in a respectful way.

Question #4: The remnants unearthed include bone fragments, some of them human. This leads to two specific questions:

(a) May a kohen participate in this project?

(b) Is there a halachic concern of mistreating the dead, since these human remains will not be buried afterwards, but will be stored and used for scientific research and study?

Human bones

The discovery of human bone fragments on the Har HaBayis is puzzling, since Jews would never have buried anyone there. In all likelihood, these are bones of non-Jews that were interred there, or perhaps of Jews who were killed on the Har HaBayis and, unfortunately, not buried according to halacha. Even if we assume that these are bones of non-Jews, a fragment as small as the size of a barleycorn will convey tumah, if moved or touched. Therefore, since there is a reasonable chance that a kohen might touch or lift a human bone fragment, he should refrain from participating in this project.

Burial

Does a non-kohen need to be concerned about the possibility that he will locate bones, and that he now has a mitzvah to bury them?

If one can assume that the bones discovered were from non-Jews, there is no mitzvah to bury them, but only to be certain that they do not render a kohen impure. Even if the bones are from a Jew, it is unclear whether the mitzvah of burying a Jewish meis applies to such a small amount. The Mishneh LaMelech[xi] rules that the mitzvah of kevurah does not apply to part of a corpse, whereas the Tosafos Yom Tov[xii] rules that one is required to bury a piece of a Jewish meis as small as a kezayis. However, it is unclear how small a piece of bone requires kevurah.

Avodah Zarah

Question #5: Some artifacts that surface are clearly from what were once idols. Is there a halachic requirement to destroy them? Is it the finder’s responsibility to destroy them, something which the archeologists do not permit?

Some background to this shaylah: It is prohibited to benefit from an idol; furthermore, there is a Torah mitzvah to destroy idols in a way that no one can ever benefit from them.[xiii] The suggested method is to grind up the idol and scatter the filings to the wind or the sea. One may also not benefit from a broken idol, and the same halachic requirement exists to destroy it.[xiv] Obviously, the archeologists overseeing the work will not allow this halacha to be fulfilled.

Thus, in conclusion, it appears that one unless one found usable metal vessels, one does not need to be concerned about using Beis HaMikdash property while sifting earth removed from the Har HaBayis. It also seems that a non-kohen may participate in these activities if he can have control over the items that he finds and can destroy the idols and bury the human bones and any remains from the Beis HaMikdash that he may find. However, he may not participate as a member of a “dig team,” where he is forced to follow the instructions of an archeologist who is not following halachic guidelines.

A halacha background

From photographs I have seen of the new mosque, it appears that the Waqf did very little actual construction, but simply hollowed out one of the underground archways as it was originally constructed when the Beis HaMikdash was built. Explaining this underground construction is, in itself, a fascinating halachic subject.

Underground archways

Someone who stands above a buried corpse or part of a corpse becomes tamei (with the exception of the case I will describe below). When the Beis HaMikdash was built, the building was constructed in a way that it was impossible to become tamei, even if someone was once buried in the earth beneath the Beis HaMikdash, itself an almost impossible scenario. In order to eliminate the possibility of someone becoming tamei from such a corpse, the Har HaBayis was constructed with “archways on top of archways.”[xv]

To explain this construction, I will elucidate how tumas ohel works. If there is tumas meis under a building, tumah spreads throughout the building, but does not spread above the building. Therefore, someone walking on the roof of the building remains tahor, even though he walked directly above the meis.

Similarly, if one constructs an archway, and there is tumah under the roof of the archway, the tumah spreads underneath this entire archway, but not above it. This is because an archway is a building –tumah spreads underneath it, but the archway prevents tumah from rising above it.

However, if the meis was buried beneath the pillar of an archway, the tumah is not inside the ohel, but under the pillar – and the tumah rises vertically and contaminates the area directly above it.

The way to prevent this tumah from proceeding upward and rendering people above it tamei is to construct another archway directly above the pillar. This way, although the tumah will rise through the pillar of the lower archway, it will then remain within the ohel of the upper archway and not spread above it.

This is the concept of “archways on top of archways” — where both of the upper archway’s pillars rest on the arch of the lower archway, which effectively blocks tumas ohel from spreading from the ground below to any area above the double archway. If the meis is beneath the arch of the lower archway, the lower archway blocks tumah from rising above it, and if the tumas meis is beneath the pillar of the lower archway and its tumah rises above the lower archway, it will be blocked by the upper archway.

Thus, to avoid any possible tumas meis in the Beis HaMikdash, the entire Har HaBayis was constructed with underground double sets of archways, thereby guaranteeing that no tumas meis could spread upward from a meis below. The Waqf apparently cleared out the debris accumulated under one of these archways, and used it as the roof of their mosque!

Incidentally, this method of making “archways on top of archways” is used to correct the problem of roads discovered to pass over graves or cemeteries. In this instance, very small “archways” are constructed, but this is sufficient, because to accommodate this halachic problem, each section of archway-ohel needs to be only a tefach high.

We all hope and pray that the day will soon come when the Beis HaMikdash returns as the Bayis Shlishi, and we will ascend to the Har HaBayis in purity, sanctity, and joy to serve Hashem by observing all of the mitzvos.

An earlier version of this article was published in From Buffalo Burgers to Monetary Mysteries. If you would like to purchase this book, or From Vanishing Importers to Vultures’ Wings, or any of my Hebrew publications, please contact me by e-mail.

 

 

[i] Kaftor VaFerech, Chapter 6; Kesef Mishneh, Hilchos Beis HaBechirah 6:14; Magen Avraham 561:2; Shu’t Binyan Tziyon #2.

[ii] Zevachim 93b

[iii] 7:22

[iv] Avodah Zarah 52b

[v] Mishnah and Gemara Eruvin 104b; Rambam, Hilchos Bi’as HaMikdash Chapter 3

[vi] Rambam, Hilchos Yesodei HaTorah 6:7

[vii] Rambam ibid.; and Hilchos Beis HaBechirah 1:17

[viii] Shu’t Achiezer, Yoreh Deah #49; Aruch HaShulchan HeAsid 4:24-25; Minchas Chinuch #437

[ix] Tosefta, Megillah 2:10; Rambam, Hilchos Beis HaBechirah 1:15

[x] Cited by Machazik Bracha, addendum to Orach Chayim 151

[xi] End of Hilchos Aveil

[xii] Shabbos 10:5

[xiii] Rambam, Hilchos Avodah Zarah 7:1; Shulchan Aruch, Yoreh Deah 146:14

[xiv] Shulchan Aruch, Yoreh Deah 146:11

[xv] Mishnah, Parah 3:3; Rambam, Hilchos Beis HaBechirah 5:1