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 Shabbat Parashat Shelach| 5765Moreshet ShaulFrom the works of Hagaon Harav Shaul Yisraeli zt”l - Preserving Kilayim (Mixed Species) - Part I - Condensed from Eretz Hemdah, vol. II, 5:1,3,8
The Torah describes the prohibition of kilayim with the root “zaroa” (sowing). It would appear that there is no Torah prohibition to possess a field that contains kilayim that one did not sow or plant. This indeed is the opinion of Rabbanan. However, R. Akiva argues that one who is m’kayeim (we will translate, in the meantime, as preserve) kilayim in his field is fully culpable, to the extent that he is potentially subject to malkot (lashings) (Moed Katan 2b). R. Akiva’s opinion is based on a modified reading of the pasuk, and there are severaldifficult explanations as to the exact manner he derives it (see Eretz Hemdah, ibid.:1). Of course, R. Akiva’s opinion can have far-reaching consequences in many practical situations where kilayim exists without the field’s owner having sown his field in that manner. Which opinion is accepted as practical halacha?
There is a rule that when R. Akiva argues on one of his colleagues we accept R. Akiva’s position, but when he argues on a number of colleagues we follow the majority (Eruvin 46b). But let us examine the ruling of the Rambam. The Rambam (Kilayim 1:2,3) rules that one who weeds or covers seeds with earth in a field with kilayim deserves malkot, but one who preserves kilayim in his field, while this is forbidden, does not have the punishment of malkot. This position raises two questions. The Rambam seems to take a position that is in between that of R. Akiva and Rabbanan. Also, why should weeding or covering the seeds be more severe than preserving?
The Kesef Mishneh explains that the Rambam holds like Rabannan, and even they agree that there is a rabbinic prohibition to preserve kilayim, which is what he is referring to when he writes, forbidden but no malkot. In order to understand how weeding and covering are different, we need to learn the gemara in Moed Katan (ibid.). Rabba says that one who weeds or waters a field on Shabbat violates Shabbat in the category of choresh (plowing) because his actions improve the ground. Rav Yosef says that he violates zorei’ah, because the intention of his action is to have the vegetation grow better. Rav Yosef asks on Rabba from a baraita that says that one who weeds a field of kilayim or covers the seeds receives malkot. Since only sowing is forbidden by kilayim, not plowing, it follows that weeding is included in sowing. Rabba answers that the malkot for weeding is only according to R. Akiva that preserving the kilayim gets malkot.
The Kesef Mishneh gives two explanations as to why there are malkot for weeding and covering: 1) When preserving the kilayim is done by a positive action, even Rabbanan agree with R. Akiva that the violator receives malkot. 2) The Rambam accepts the approach of Rav Yosef that weeding and apparently also covering are included in the category of sowing, which is forbidden explicitly by the Torah. The Kesef Mishneh’s second approach seems to be the more convincing one, because within the context of the laws of Shabbat, the Rambam (8:2) rules (like Rav Yosef) that weeding is included in the category of sowing.
The Taz and the Chatam Sofer understand the Rambam differently from the Kesef Mishneh. They say that the Rambam means that there is a Torah prohibition for preserving kilayim, as he rules like R. Akiva, just that there are no malkot. TheTaz infers from the language of “eino lokeh,” that short of that, the prohibition is complete. However, one could infer like the Kesef Mishneh from the fact that it does not say “oveior b’lo ta’aseh.” [Ed. note- Rav Yisraeli continued to ask on the Chatam Sofer, in preference of the Kesef Mishneh’s understanding.]
The Rosh in one place seems to rule like R. Akiva, but in another leaves it as an unsolved question. Therefore, the halacha would seem to be like the simple understanding of the Rambam that preserving is forbidden only rabbinically and weeding is forbidden as a form of sowing.
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