Masechet Midot begins in a similar manner to Masechet Tamid discussing shmirah (guard duty) in the Beit Ha’Mikdash.30 Here however, it elaborates further discussing the shmirah performed by the levi’im as well as the following detail:
Ish Har Ha’Bait would go between watch posts with a lit torch in his hand. [If he found] any guard who would not stand [when he approached] he would say “Shalom to you”. If it became clear that the guard was asleep he would strike him with a stick. He also had permission to light his clothes…
The Tifferet Yisrael writes that this measure served not as a punishment, but rather as a strong deterrent for the other shomrim as the screams of the now awake shomer would resonate throughout the Mikdash.
A question that arises from this disciplinary action is how was he allowed to set light to the sleeping shomer’s clothes? There is a prohibition of “ba’al tashchit” – simply translated as not causing undue waste. The Torah (Devarim ) prohibits cutting the fruit trees surrounding a city under siege at a time of war. The Chachamim extended this prohibition to other items as well (Rambam Melachim 6:10). How then can the clothes be lit? 31
The Tifferet Yisrael answers that the burning was defined as a knas (a fine). Consequently it served a purpose and no longer is the subject of ba’al tashchit. The Ramban (Hashmatot Le’Sefer Hamitzvot, Aseh 6) explicitly rules that the prohibition only applies when wasting for no reason.
The Rosh however writes that in this case there is no ba’al tashchit because “hefker beit din hefker”. This concept relates to Beit Din’s power to cancel one’s monetary ownership of property. According to the Rosh inflicting a fine in this manner is clearly not enough to allow burning the clothes. Yet, how does hefker beit din hefker relate to the prohibition of ba’al tashchit? The question is further sharpened as ba’al tashchit appears to apply also to hefker (ownerless) items.32
The Shut Yehuda Ya’ale understands that the Rosh simply disagrees; rabbinic ba’al tashchit does not apply to ownerless property. Since the Chachamim expanded the prohibition they can limit it just the same. (One could suggest in a similar manner that as it is a rabbinic prohibition they deemed that it did not apply in this situation. Such a suggestion would not help to understand the Rosh as he specifically employs hefker beit din hefker.)
Alternatively the Node Beyehuda (Mehadura Tanina, Yoreh Deah 10) however suggests an important distinction. While he understands that ba’al tashchit applies to hefker property it does not apply to items that have no loss to any person. Perhaps one could suggest that in this case, the hefker beit din hefker is stronger than normal hefker in that it makes it perpetually ownerless and therefore of no value to anyone.
30: Why does this Masechet, that deals with a description and dimensions of the Beit Ha’Mikdash, open with a discussion about shomrim? The Tifferet Yisrael explains that the entire purpose of learning this masechet is so that we can guard in our hearts the form and design of the Beit Ha’Mikdash so that we can know how it will be built in the future whether built by man (Rambam) or whether it comes done from heaven (Rashi). We must therefore “guard” in our hearts, even now, all its details. He uses this understanding to explain the pasuk “On your walls Yerushalaim I have placed watchmen all day [while the Beit Ha’Mikdash is built] and all night [during the time the Beit Ha’Mikdash is destroyed.]”
31: Another question relating to lighting the shomer’s clothes is how a physical punishment can be given without prior warning, especially in a case where the shomer is likely to have been overcome by tiredness and did not deliberately sleep at his post. An answer to that question can be found in the Shut Yehuda Ya’ale (Chelek A, Yoreh Deah 164).
32: See the Shut Dvar Avraham. The Shulchan Aruch Ha’Rav (Hilchot Shmirat Ha’Guf Ve’Hanefesh) explains that since ba’al tashchit applies to the property of the enemy at a time of war, it must certainly apply to ownerless items.
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