A Hard Nachal – But What Is a Nachal?

Question #1: Valley Stream, Israel

What is a nachal eisan? A hard valley or a powerful
stream? And what is a “hard valley”?

Question #2: Celebrating birthdays!

When does halacha consider it significant to know
the birthday of a calf? Do we use the Hebrew birthday or the solar birthday
(sometimes called the “secular birthday” or the “Gregorian birthday”)?

Question #3: Why now?

Why are we discussing these questions this week?

Introduction

When the brothers return from Egypt to tell Yaakov the
exciting news that Yosef is, indeed, still alive, and that he is the ruler of
the entire country, Yaakov does not believe them. Only when he sees the wagons
that Yosef sent does he accept that the story is true. Why then? Chazal
explain that the last subject Yaakov and Yosef had been studying together
before Yosef so mysteriously disappeared was the topic of eglah arufah,
and the four Hebrew letters that spell the word eglah could also be
pronounced as agalah, wagon. Thus, Yaakov understood that only Yosef
would be able to supply this hint, and that the story that the brothers were
telling him was true.

This provides opportunity for us to study the detailed and
difficult laws surrounding the mitzvah of eglah arufah. Let us
begin with the description of this mitzvah as expressed in the Torah:

“Should you find, in the land that Hashem, your G-d,
is giving you to inherit, someone slain, lying in a field – and it is unknown
who killed him, your elders, your judges, must leave (the Sanhedrin) and
measure to the cities that are near the corpse. The elders of that city bring a
calf that
has never been worked and that never pulled a yoke. The elders of that city
bring this calf down to a nachal eisan (a term I will explain) that (asher
in Hebrew) will not be worked and not planted, and there, in that nachal,
they break the calf’s neck from behind. The kohanim, the sons of Levi,
come forward, because Hashem, your G-d, chose them to serve Him and to
bless in the Name of Hashem, and according to their word shall be every
dispute and every nega (affliction of tzaraas). Then, all the
elders of that city nearest the corpse shall wash their hands over the calf
that was killed in the nachal. They then raise their voices, declaring,
‘Our hands did not shed this blood, and our eyes did not see. Atone for Your
people, Yisroel, whom You, Hashem, have redeemed, and do not allow
innocent blood to be shed among Your people, Yisroel.’ Thereby shall this blood
be atoned” (Devorim, 21:1-8).

In the earlier article, which I sent out two weeks ago, we
noted that there are five different aspects to the mitzvah, each incumbent upon
a different participant:

(1) The finders of the fallen victim, who notify the main
Sanhedrin, take care of the corpse, and, eventually, bury it.

(2) The representatives of the main Sanhedrin, who measure
the distance from the fallen person to the nearby cities to determine which
city is nearest the scene of the crime.

(3) The beis din of the city nearest the crime
scene, which brings a female calf to a nachal eisan and performs the
procedure described by the posuk.

(4) All the elders of that city, who wash their hands and
make the declaration, “Our hands did not shed this blood and our eyes did not
see.”

(5) The kohanim, who make the declaration, “Atone
for Your people, Yisroel, whom You, Hashem, have redeemed, and do not
allow innocent blood to be shed among Your people, Yisroel.”

In addition to the five groups obligated to fulfill the
mitzvah of eglah arufah, there is another mitzvah that is incumbent on
all of Klal Yisroel: a prohibition not to use the nachal eisan in
the future.

In the previous article, we described the procedures
through step (2) above. The members of the Sanhedrin have completed the
measuring and have determined which city is nearest to where the victim fell.
This city and, specifically, its beis din now become responsible for
bringing the calf. We continue our discussion from this point.

The locals take over

The local beis din brings a female calf that is
under the age of two (Parah 1:1, Rash ad locum; Rambam,
Hilchos Rotzei’ach
10:2) to a place that the Torah calls nachal eisan,
where that beis din performs a very unusual course of action (see
below). Following this course of action, with all its details, is the main
fulfillment of the mitzvah of eglah arufah, and is what atones for the
local community’s negligence that allowed this tragedy to occur.

Age of calf

The calf must be before its second birthday, but it may be
any age younger, as long as it is at least eight days old.

At this point, we can address the second of our opening
questions: When does halacha consider it significant to know the
birthday of a calf? Not in order to celebrate it with streamers and a birthday
cake, but to know when it will be invalidated for use as an eglah arufah.
Similar laws are germane to korbanos –  in those korbanos
that allow use of an animal only up to a certain age, the age is determined by
the birth date of the individual animal. Since the halacha in this
regard deals with the Jewish calendar, it is important to keep track of the
calf’s Hebrew birth date. Even though extensive information is kept of dairy
cows in our day, including their vaccination and other full veterinary records,
the Hebrew date is not used, even if the calf is owned by a frum farmer.

What is a nachal eisan?

At this point, let us examine our opening question: “What
is a nachal eisan? A hard valley or a powerful stream?”

Rashi
and the Rambam disagree concerning the definition of a nachal eisan.
The Rambam explains it to be a strongly flowing stream (Hilchos
Rotzei’ach
9:2), whereas, according to Rashi, it is a rocky valley
that has never been tilled (Devorim 21:4; Sotah 46a, b; Pesachim
22a; Chagigah 19a). Their disagreement appears to be whether the
word nachal in this context means valley (Rashi) or stream
(Rambam). The Gemara (Sotah 46) explains that the word
eisan means hard; thus, Rashi explains it to mean a hard,
rocky valley, whereas the Rambam explains it to means a hard-flowing
stream.

Nachal that is not eisan?

The Mishnah (Sotah 45b) rules that if they
found an area that qualifies as a nachal, it can be used, even if it is
not that hard. The requirement that the area be eisan, hard, is lechatchilah,
preferred min haTorah, but not required. According to the Rambam,
this means that they found a stream they could use, but the flow is not that
strong; according to Rashi, it means a valley or dry wadi bed, but not
necessarily a rocky one.

The Minchas Chinuch points out that the nachal
eisan
area must either be ownerless or be owned by the people of the city.
This means that, having located a nachal eisan area, the beis din,
or the members of the city, must determine if the area has an owner. If there
indeed is one, they must purchase the property. No mention is made what they
are to do if they find the owner to be as unscrupulous as Efron was in his
dealings with Avraham. Presumably, they can continue to hunt for another nachal
eisan,
if they do not like his price. Assuming that there are two available
areas, one hard and the other not, they should choose the hard area. However,
if there is a major price differential between the two areas, I have no idea
how much they are expected to spend for the harder area.

No local nachal

The Minchas Chinuch rules that if no nachal eisan
was found in Eretz Yisroel, they could use one that is outside Eretz
Yisroel
. Although the mitzvah of eglah arufah applies only when the
victim is found in Eretz Yisroel, the actual place where the procedure
takes place can be anywhere. However, Rav Chayim Kanievski, in his monumental
work Nachal Eisan, draws evidence from rishonim that several of
them (Tosafos, Pesachim 52b s.v. ad; Tosafos
Shantz
, ad loc.; Sefer Hachinuch) held that the nachal
eisan
must be in Eretz Yisroel.

Washing and declaring

The beis din of the determined city is then
responsible for having the calf slaughtered according to the method described
here by the Torah. The next step is that the members of the beis din and
all the older people of that city wash their hands in the place where the calf
was killed. The Gemara rules that they must be careful to wash their
hands directly above the place where the calf died (Sotah 46b).

The Rambam rules that the mitzvah of washing hands
applies to “all the zekeinim of the city, even if there are a hundred,”
without explaining what definition we use for “zekeinim.” Rav Chayim
Kanievski explains that this includes anyone over the age of sixty who is able
to make the trip (Nachal Eisan 14:3). He further discusses whether a
woman above the age of sixty is also required to participate, and he is
inclined to think that she is not.

This is presumably the only time where, outside of the Beis
Hamikdash
, there is a requirement min haTorah to wash your hands.
According to Rav Chayim Kanievski, there is no requirement that they use a cup,
nor that a revi’is of water be used, nor are the elders required to dry
their hands afterwards. Rav Chayim rules that they fulfill the mitzvah even by
dipping their hands into a pail of water (Nachal Eisan 14:4).

After washing their hands, the zekeinim make a
declaration, “Our hands did not shed this blood and our eyes did not see.”
However, if they made the recital the way I just quoted it, they did not
fulfill the mitzvah, since the Mishnah (Sotah 32a) rules that it
must be recited in Hebrew, exactly as the words of the posuk are
written. This requirement exists, notwithstanding that we rule that both kerias
shema
and davening may be recited in any language that you
understand (Sotah 32a)!

Care must be taken that the words are recited accurately
and grammatically correctly, and that they are spaced in a way that the meaning
is not confused (based on Yevamos 106b).

The Mishnah (Sotah 45b-46a) rules that the
two pesukim mentioned by the Torah are divided into two units. The first
posuk, “Our hands did not shed this blood and our eyes did not see,” is
recited by the elders of the city, whereas the next posuk, “Atone for
your people, Yisroel, whom You, Hashem, have redeemed, and do not allow
innocent blood to be shed among your people, Yisroel,” is recited by the kohanim.
Rashi explains that the source for this law is because the Torah
instructs the kohanim to “come forward,” yet it does not clarify a
specific role for them to play.

Just as in the case of the laws of the first posuk,
the kohanim must recite this posuk in its original Hebrew.

The Mishnah (Sotah 45b) raises the following
question: “Is anyone accusing the elders of the city of being the murderers of
this unfortunate victim?” Why then must the elders make a statement that they
did not shed his blood? The answer is that the city may have contributed to the
death of the victim by not seeing adequately to his needs and safety. It is for
this negligence that they are seeking atonement. The statement, “Our hands did
not shed this blood and our eyes did not see,” means that nothing the townsmen
could have done would have saved this unfortunate soul. There was nothing for
them to have done that they failed to do.

Never be used

After the eglah arufah procedure is performed, it is
prohibited to use the earth of this nachal. (According to the Rambam,
this means either the riverbed beneath the stream, or its banks.) However, the
area above ground may be used. To quote the Mishnah: “Its location may
not be planted or worked, but it is permitted to comb flax there or to hew out
stones” (Sotah 45b). Based on droshos in the words of the posuk,
the Gemara (Sotah 46b) explains that it is prohibited to use the
earth itself, which occurs when the ground is plowed or planted, but using the
surface of the earth, or even mining it, is not called “using the earth.”As we
mentioned above, the Mishnah rules that, after the procedure of eglah
arufah
has been performed, the area used, the nachal eisan, may
never again be used. This prohibition is counted by the Rambam and the Sefer
Hachinuch
as a separate mitzvah of the 613. (In most editions of the Sefer
Hachinuch
, this is counted as mitzvah #531).

In this context, the Gemara (Sotah 46b)
quotes the following beraisa: “Our rabbis taught: which (in
Hebrew, asher) was not worked and not planted. This teaches that
it is never again permitted to plant in this nachal. How do we know that
other types of work are prohibited? Because the Torah states, which was not
worked
, meaning any type of work. If so, why did the Torah previously
state, which was not planted? This teaches us that, similarly to
planting, which uses the ground itself, the Torah is prohibiting only activity
using the ground itself. This excludes combing flax or removing stones, which
do not use the ground itself,” and are therefore permitted.

In conclusion, the Torah’s prohibition applies only to
using the nachal eisan for agricultural purposes. Thus, it is permitted
to build a shopping mall on top of the nachal eisan and make the land
worth billions of dollars!

There is halachic discussion whether whatever grows
from what was planted in violation of the law is prohibited from use. According
to most authorities, what grows there is prohibited, and it is even prohibited
to use the produce for any benefit, including selling it to non-Jews or as
animal feed (see Sefer Kerisus, at end; Pri Chodosh, Yoreh Deah 110:13;
however, see Minchas Chinuch).

Does the prohibition include harvesting vegetation that has
already grown there or subsequently grows on its own? The Minchas Chinuch
concludes that it does not, since reaping does not use the land, and the Torah
mentions specifically working the earth and planting, which do not seem to
include harvesting.

It is also implied by this discussion that there is no
prohibition in walking on or through the nachal eisan, even to use it as
a shortcut to get from place to place. This is not considered using the soil of
the nachal eisan.

Past use?

Must the nachal eisan be an area that was never used
in the past? This is a dispute among late tanna’im, as quoted by the
following Gemara: “Our rabbis taught: ‘that (asher in Hebrew)
will not be worked and not planted.’ This means that the area was never used in
the past – these are the words of Rabbi Yoshiyah. Rabbi Yonasan says, ‘in the
future.’ Rava explains, ‘Everyone agrees that it cannot be used in the future,
because the verse uses the future tense – “will not be worked.” Their dispute
regards only the past’” (Sotah 46b). The Gemara’s conclusion is
that the word asher in the posuk could be interpreted to mean
that, not only can this property never again be used in the future, but it had
never been used in the past, either. This is the dispute between Rabbi Yoshiyah
and Rabbi Yonasan.

Conclusion

One of the many rules of eglah arufah is that the mitzvah applies only when the victim was found lying open — unburied by the murderer. In Rav Hirsch’s analysis (Commentary to Devorim, 21:1), this means that leaving the victim exposed, as the perpetrator did, demonstrates a shocking lack of concern for society, a mockery for any authority. (Since I cannot do justice to Rav Hirsch’s beautiful explanation and analysis, I recommend that our readers examine it themselves.)

Based on an extensive analysis of both Talmudim’s explanations of aspects of the mitzvah, Rav Hirsch explains that the concept of eglah arufah is for the elders of the city to declare that this city takes care of the needs of all travelers who pass through, and also provides properly for all its residents. Severe poverty should not exist in a community – at least not to the extent that it can be used to excuse a crime.

Thus, although we sincerely hope that the mitzvah of eglah arufah is never observed, we should always learn from its lessons!