Shabbat Parashat Nitzavim-Vayeilech - 5786

Shabbat Parashat Nitzavim-Vayeilech - 5786

Rabbi Hal Miller

  Not with you alone do I forge this covenant and this oath but with whoever is here,

​  standing with us today, before Hashem our God, and with​ whoever is not here with

​  us today. [​Devarim 29:​13-14]

​How can someone bind others in a covenant? In particular here, each person is binding his wife, his existing children and his future descendants for all generations. None of them are participating in this decision. We know that in general we cannot bind someone without their permission. How are we able to do so here?

One could make the argument that following Torah law is automatically beneficial but the Gemara Bava Metzia [12a] states, "We may not disadvantage a person except in his presence. With regard to a gift, which is beneficial to him we may benefit a person in his absence." This is understood from the viewpoint of agency, as to whether a person may act as an agent to bind another without the knowledge of the principal, and can also be applied to property owned by the agent. Our verse is a case of people (the Jews standing before Moshe) binding principals (the Jews of the future per Rashi and Tanchuma) who are not aware of the agency. This Gemara binds those future Jews to anything beneficial, but how about the case of obligations or restrictions? It seems to be prohibited.

Further, agency does not work in all situations of benefit. In the area of fulfilling a mitzvah for someone, Rav Ezra Bick, for example, divides mitzvot into two types, result-oriented and process-oriented, and points out that while result-oriented mitzvot can be fulfilled by an agent, process-oriented mitzvot cannot. Examples of result-oriented might include brit milah, shechting meat, taking challah and toiveling vessels, while examples of process-oriented would be taking a lulav, sitting in a sukkah or doing a personal mikvah. In the world of business, an agent might find an opportunity for a principal which the principal does not desire, even if it would be beneficial, which might argue regarding the degree of agency. Thus there is not a clean dividing line where benefit will bind a principal.

Another area of binding is inheritance. While initially one might say this is beneficial, the property passed by will remains subject to any existing mortgage, covenants or restrictions, thus although the beneficiary might refuse the property, as Sforno writes, if he accepts it he is bound by those limitations. Abarbanel expands this noting that heirs of the estate are bound to repay debts of the deceased.

But perhaps the benefit-detriment angle is not the right way to consider our question. Malbim for example states that it is not the parents obligating future generations here, rather it is God obligating that generation and all following ones. Since God created and owns every soul and we understand that every Jewish soul was present at Sinai, it is not the parents obligating future generations, rather those future people themselves are accepting the obligations God is decreeing. He adds that this decree removes any choice in the matter, whether for those there at the time or for future generations.

Or HaChayim explains that the purpose of our verse is to make each Jew responsible for the performance of mitzvot by all other Jews.​ R'Shmuel Fuerst bases it on Vayikra (19:18) v'ahavta l'rei'acha kamocha that we are all obligated to save the life of another Jew, which he explains means both physically and spiritually, referring to kiruv as well as pikuach nefesh. Nechama Leibowitz explains that the result of our verse is that each of us is obligated in halacha and that it is not our choice whether to observe or to cast off, in the end each of us is responsible for all of Torah. Thus our verse is not people obligating their future generations, it is God obligating all Jews for all time.