QUESTION: The Gemara says that Moshe Rabeinu knew that the Mekoshesh was supposed to be punished by death for desecrating Shabbos. He merely was unsure of what type of death the Mekoshesh deserved.

TOSFOS (DH she'Ne'emar) and other Rishonim are bothered with Moshe's doubt. The Gemara in Sanhedrin (52b) states that whenever the Torah says that someone is put to death but does not specify which of the four deaths (Sekilah, Sereifah, Hereg, Chenek) the sinner receives, the rule is that the Torah prescribes "Chenek" ("strangulation"). Since the Torah says that one who violates Shabbos is put to death and does not specify which form of death, Moshe Rabeinu should have known that the prescribed form of death for the Mekoshesh was "Chenek."


(a) TOSFOS answers that Moshe Rabeinu thought that logic should dictate that the Mekoshesh should be punished with Sekilah, since that is the punishment given to an idolater. One who desecrates Shabbos is compared to one who worships idols (see, for example, Chulin 5a).

(b) The PARDES YOSEF (end of Parshas Shelach) quotes the ROKE'ACH who explains that Moshe Rabeinu was told explicitly by Hash-m that whenever the Torah says that a sin is punishable with death but no specific form of death is mentioned, the Torah means Chenek except in the case of desecration of Shabbos. Accordingly, Moshe Rabeinu knew that the prescribed form of death was not Chenek, but he did not know what form of death was prescribed, and thus he needed to ask Hash-m.

According to both of these explanations, a difficulty remains. Moshe Rabeinu was told all of these Halachos at Har Sinai (at least according to Rebbi Akiva (Chagigah 6b), who maintains that all Halachos and their details were said to Moshe Rabeinu at Har Sinai). If that was the case, why did Moshe Rabeinu not remember the Halachah?

The ANAF YOSEF answers that when the Gemara says that all of the Halachos and their details were given to Moshe Rabeinu at Har Sinai, it does not mean that everything was given over explicitly. It means that the ability to understand all of the Halachos of the Torah was given over to Moshe Rabeinu. Some Halachos were stated clearly, while others were stated only in allusions and could be derived through the thirteen methods of Halachic derivation, such as Kal va'Chomer and Gezeirah Shavah. The punishment for Shabbos desecration was given over in such a manner. Moshe Rabeinu, however, was unable to discern the appropriate Derashah which would tell him the punishment for someone who desecrated Shabbos, and he therefore needed to ask Hash-m. (Y. MONTROSE)



OPINIONS: The Gemara states that the daughters of Tzelofchad were "Darshaniyos" -- "expounders"; they knew how to expound and understand the intent of the Torah. This is evident from the fact that they said, "If he (our father) would have had a son, we would not have said anything."

How did the daughters of Tzelofchad know that if there was a son, they would not inherit? Very little is said in the Torah about inheritance prior to the Torah's discussion of the daughters of Tzelofchad.

(a) The RASHBAM (DH Ilu Hayah Lo) explains that the daughters of Tzelofchad already knew the laws of inheritance which would be stated in the Torah after their query. Their only question was whether or not they would also receive a double portion of inheritance from their father's father, as Tzelofchad was the oldest son of Chefer. They knew that when the Torah states, "When a man dies and he has no son, you shall pass his inheritance to his daughter" (Bamidbar 27:8), it means that if their father had a son, they would inherit nothing. Why, though, does this knowledge of the verse make them "Darshaniyos"? While they certainly were "Chochmaniyos" -- "knowledgeable women" -- for knowing the Torah's discussion of inheritance, they did not expound anything.

The Rashbam answers that the daughters of Tzelofchad were "Darshaniyos" because they knew the correct interpretation of the verse. The Gemara earlier quotes Rav Papa's possibility that the verse might mean only that when there is no son, the daughter inherits, but when there is a son and a daughter, they split the inheritance equally. The fact that they knew that this was not the correct interpretation of the verse shows that they were "Darshaniyos."

TOSFOS questions the Rashbam's assumption that the daughters of Tzelofchad knew the Parshah of Yerushah, even though it had not yet been written in the Torah. From where could they have known the Parshah of Yerushah?

(b) TOSFOS quotes the RASH MI'SHANTZ who explains that the daughters of Tzelofchad knew the verse, "And you shall bequeath them to your sons after you" (Vayikra 25:46), stated with regard to Avadim Kena'aniyim. The daughters of Tzelofchad understood from the Torah's words, "to your sons," that Torah law gives inheritance to sons. They therefore were unsure whether daughters also inherited.

(c) Alternatively, the Rash mi'Shantz explains that they knew that when a woman marries, her husband becomes the owner of the property that she brings into the marriage. This means that when a woman inherits property from her father, she serves as a vehicle to transfer the property from one Shevet to another. The daughters of Tzelofchad were concerned that since Eretz Yisrael was to be divided among all of the Shevatim, perhaps it was not the will of Hash-m that they, as daughters, should inherit their father's portion.

(d) Tosfos suggests another possibility. The verse states, "To these the land should be divided" (Bamidbar 26:53). This verse is said in reference to men, and thus the daughters of Tzelofchad were unsure if women inherited. (Y. MONTROSE)