From Parsha to Halakha: Ki Tavo – Remember not to forget

Parshat Ki Tavo begins with two mitzvot that only apply once Israel has come to the Promised Land and “possessed it and settled it.” These mitzvot are rare instances of Torah mandated liturgy; each involves a verbal declaration related to a mitzvah involving separating produce. The first, mikra bikkurim, is a declaration recited when bringing the first fruits to the Temple.^[1] It’s a prayer of praise and thanksgiving, recognizing that God took us from wandering, persecuted individuals to give us a land flowing with milk and honey.

Vidui mitzvot

Chazal call the second statement vidui ma’aser, the confession of tithes. It is a bit more difficult to categorize. After tithing and properly allocating the produce of the third year, we are commanded to say:

“I have eliminated the sanctified [produce] from the home, and I have also given it to the Levite and the foreigner, to the orphan and the widow, in accordance with all Your commandments that You have commanded me; I have not transgressed [any] of your mitzvot, and I have not forgotten…”

The statement continues to list sins one has not committed with the produce, repeats that the individual has fulfilled all the mitzvot, and ends with a prayer for God to bless the people and the land. Elsewhere in Jewish liturgy vidui involves the detailed confession of our sins. Yet here it seems to be a detailed list of the mitzvot we have observed.^[2]

Why must we make this confession?

It’s possible this is a sort of checklist one must go through to ensure they have indeed fulfilled all their obligations. Sefer HaChinukh adds that the verbal declaration accounting for all the mitzvot “before the Eternal, your God,” at the Temple makes people more careful when they observe these mitzvot, as they do not want to lie before God.

This is not the only case of a positive vidui. There have been recent pushes to include a vidui al mitzvot, confession of positive commandments, in the High Holiday services. Instead of exclusively focusing on our wrongdoings, we also take time to list positive commandments we have observed. The positive confessions inspire us to strive for better mitzvah observance.

Vidui ma’asrot is detailed. It covers several different mitzvot involving produce and is recited by all Israelites who possess portions of land, those who give tithes and those who receive them. Many commentators break down the vidui to explain the specific mitzvot each phrase refers to, but one phrase seems to raise more questions than answers, the declaration “I have not forgotten.”

First, if the individual has already listed the mitzvot “in accordance with all Your mitzvot as you have commanded me” and “I have not transgressed [any] of your mitzvot.” What does “I have not forgotten” add? And second, since these mitzvot are performed over years, how can someone declare with confidence that they did not forget?

One possibility is that each statement adds another legal aspect. This is the direction Bechor Shor takes when he explains the various aspects of the declaration. Yet he does not explain what “I did not forget” adds.^[3] Alternatively, Rashi brings the gemara that “I did not forget – to bless You upon the separation of tithes.”^[4] Consequently, a few halakhic authorities explain that the blessing made when separating tithes is Torah mandated.^[5]

Birkhat Asher disagrees. He explains that these blessings are not Torah mandated, and Rashi is merely bringing an asmakhta – attaching a rabbinic rule to a Torah source. Malbim teaches that the blessing is rabbinic, but the Torah mandates saying a prayer with God’s name when separating tithes, and once the rabbis decided on the proper blessing, it became the proper way to fulfill the Torah commandment. Alternatively, Gur Aryeh agrees the blessings on ma’aser are rabbinic, but states Rashi wasn’t referring to a standard verbal blessing; he meant the person felt love, praise, and blessing when separating tithes: “I did not forget to bless you upon separating tithes, I gave the tithes for the sake of the Holy One, blessed be He, and I gave them with love.”

The Netziv takes a completely different approach. He explains that the Torah actually mandates we state that we did not forget and unintentionally transgress one of these mitzvot. According to the Netziv, “I forgot” is not necessarily a valid excuse. There are several halakhic contexts that discuss the liability of someone who “forgot,” and Netziv brings an example from the laws of damages to demonstrate that someone who forgets may be liable for their negligence in certain circumstances.

Adam mu’ad l’olam

As a bit of background, it’s important to understand that halakha decides damages based on more than the value of the direct damage. The types of damages one must pay are adjusted based on liability. Liability is determined by the cause of the damage (animal, human, obstacle, fire…) and intentionality.

If someone’s property causes damage – their ox gores another’s ox – they are never liable for more than the principal – the cost of the damages.^[6] Furthermore, they do not have to pay full damages unless the ox is mu’ad – the owner was forewarned to take precautionary measures because their ox has an established history of goring.^[7]

People are a different story. The Mishna states “adam mu’ad l’olam,” a person is always forewarned and therefore always liable for full nezek (the principal cost of the damages).^[8] In addition to nezek, the individual may be liable for four other types of damages: tza’ar (pain), ripui (medical costs), shevet (loss of livelihood), and boshet (embarrassment).^[9]

Shulchan Arukh states:

“One is not responsible for boshet unless they intend (meizid) to humiliate the person, and someone who unintentionally (shogeg) humiliates another is exempt. Therefore, if a sleeping person embarrasses another, they are exempt….

Some say that [the damager] is liable for tza’ar, ripui, and shevet even if [the damage] was unintentional, as long as they were not anus (compelled, coerced) but shogeg (unintentional, unwitting) that is close to meizid (intentional). But even someone who is anus is obligated, because adam mu’ad l’olam (a person is always forewarned) – whether [the damage] is shogeg or meizid, awake or asleep.”^[10]

Shulchkan Arukh differentiates between three causes of damage. Intentional damage – b’meizid – may be liable for all five payments. Unintentional damage – b’shogeg – is not liable for boshet but may be liable for the four others. Involuntary damage – o’nes – caused unconsciously is still liable for the cost of the damage itself, but not for any additional payments.

The rabbis teach “o’nes rachmana patrei” – the Torah exempts someone who sins against their own volition. Yet this is not the case for the laws of damages. The gemara illustrates the difference using the example of a person who moves without realizing there’s a stone in their lap. Any sin or damage from the shifting stone is considered o’nes, but there are vastly different repercussions.

On Shabbat, if this person moves the stone from a public domain to a private domain (prohibited on Shabbat) he is exempt from all liability, as it’s considered o’nes. Similarly, if they move and the stone kills someone, their action is considered o’nes – involuntary, they are completely exempt. This means they are not exiled to a City of Refuge, since that is reserved for shogeg – unintentional but negligent manslaughter. On the other hand, if the stone merely causes damage, then the person is liable for nezek.^[11]

The gemara then questions whether the law changes if the individual knew about the stone but forgot about it. It concludes that the law remains the same as o’nes for Shabbat and damages, but not for manslaughter; if the stone kills someone they are considered shogeg and exiled to a City a Refuge. Rambam rules accordingly. In cases of o’nes, whether they never realized the stone was there, or they knew and forgot, the person is only liable for nezek.^[12] But if the individual forgot and the stone kills someone, the individual is exiled to a City of Refuge, “because he had knowledge” at one point.^[13]

Why?

Is forgetting negligent?

Rashi explains that the categories of o’nes and shogeg are different depending on the context. Forgetting is somewhere in between an unavoidable accident, along the lines of o’nes, and a negligent mistake, closer to shogeg. Since the person had knowledge at one point, if their forgetfulness led to someone’s death they are considered a rotzeach b’shogeg, an unintentional murderer, and are exiled to a City of Refuge. But forgetfulness does not reach the level of peshi’a – negligence – necessary to incur liability for four types of damages.

Once again, Netziv takes a different tack and explains that the gemara differentiates between two types of forgetting: “Forgetting is only o’nes [the individual] is not yet obligated to take caution.”

Accordingly, one who forgets the stone is in his lap before anyone else was in the area is equivalent to someone who was never aware of the stone – any damage caused is considered o’nes. But if the forgetting happened after another person was in the vicinity, the forgetfulness is not so easily forgiven. In this case the individual was aware of the danger and was therefore responsible to take the appropriate precautions. They are tasked with remembering, and forgetting is negligent and incurs liability.

This seems similar to another case – someone who causes damage while they are asleep. The person is literally unconscious, but if they knew someone else was in the bed next to them when they went to sleep they are liable for any damages they caused. They are only exempt if they were asleep when the other person got into the bed.^[14]

The Netziv explains this holds true for other cases of shikhicha as well. If someone mistakenly missed one of the daily prayers, they are allowed to compensate with tashlumim – praying Amida twice in the next prayer.^[15] Halakhic authorities debate what happens if someone remembered they still had to pray, but thought they would have more time, and then forgot. Is this considered a mistake or o’nes, and they may pay tashlumim, or is it negligence?^[16]

Several Rishonim rule accordingly and preclude tashlumim in some cases of forgetting. Nimukei Yosef brings an opinion of the Aguda who explains that a o’nes does not always release someone from liability. If someone vows to do something within thirty days and knowingly puts it off until the last day, when something out of his control precludes him from fulfilling his vow – he is still liable. This individual had plenty of time to fulfill his responsibility; o’nes at the last minute is not considered o’nes.

Responsibility

This explanation brings to mind something that happens in most families. A parent asks their child to do something, the child procrastinates and eventually forgets. The parent reprimands them. The child doesn’t understand what they did wrong. They didn’t act maliciously and it was “out of their control.” The parent understands that the responsibility to do something includes the responsibility to remember to do that thing, not to procrastinate or become preoccupied with something else.

The Netziv also understands that part of this is counter intuitive. Forgetting may not be a valid excuse, but it does allay some of the responsibility. He therefore brings another possibility. The vidui states that one did not forget how to properly observe these mitzvot because they neglected their learning. If the forgetting is due to a lack of diligence, it is somewhat intentional.

It seems that vidui ma’asrot is a checklist, a reminder, and a confession of what we have done right. Throughout his speeches in Devarim, Moshe reminds the people not to forget – not to forget God, or everything God has done for them, or the mitzvot.^[17] As the final mitzvah in Moshe’s longest speech, it reminds us that we have a responsibility not to forget. To set up reminders – mezuzot, tzitzit, rituals, prayers. God does not forget us. We must never forget that everything we have comes from God, and that includes the responsibility of acting intentionally and mindfully.

[1] Devarim 26:1-11. As with most of the Book of Devarim, the Temple is called “the place that the Eternal, your God, chooses to rest His name there.”

[2] Seforno on verse 13 states there is a sin involved – because of the people’s sins the Levites replaced the firstborn sons. They are the ones chosen to serve God and therefore they receive the tithes, but if Israel had not sinned the Divine service and tithes would not have to be “eliminated from the house.”

[3] “I have eliminated the kodesh – ma’aser sheini is called kodesh… and I gave it to the Levite – this is ma’aser rishon… and the foreigner, orphan, and the widow – this is ma’aser ani… and also – includes teruma and bikkurim (first fruits)… in accordance with all Your mitzvot – I set aside leket, shikhakha and paiya (gifts of the field for the needy), briught bikkurim, separated teruma gedola and both maasrot, ‘I did not transgress any of your mitzvot – when I separated them according to their order and their laws.”

HaKtav v’HaKabala gives a similar explanation.

[4] TB Berakhot 40b

[5] Divrei David on Rashi

[6] For example, the owner of an ox that gored another ox is not responsible for any work or product that was lost, only the loss of the animal itself.

[7] If an ox has never gored another ox it is considered “tam” – innocent. The owner does not need to take extra security precautions because it is not likely or liable to cause damage, and if it does gore another ox the owners split the damages. If an ox has gored two or three times (disputed) it is muad – forewarned – and the owner must take extra precautions as they are liable for full damages in the future. (Shemot 21:37; Tb Bava Kama 23a)

[8] Bava Kama 2:6; TB Bava Kama 3b, 26a,

[9] Mishna Bava Kama 8:1

[10] Shulchan Arukh Choshen mishpat 421:1, 3

[11] TB Bava Kama 26bHe is not liable for the other four types of indemnity.

[12] Mishneh Torah Hilkhot Chovel u’Meizik 1:15

[13] Mishneh Torah Hilkhot Rotzeach v’Shmirat Nefesh 6:15

[14] Choshen Mishpat 421:4

[15] TB Berakhot 26a. The gemara uses the language “ta’a” – made a mistake, as opposed to bi’tel – canceled or abrogated. The former is considered intentional and is not a valid reason for tashlumin.

[16] See commentaries on Shulchan Arukh OC 108, specifically 108:8

[17] Devarim Chapter 8 switched between exhortations to remember and not to forget.