When a man takes a woman and has relations with her and hates her… (Devarim 21:13)
This pasuk introduces the mitzvah of kiddushin. This mitzvah requires that marriage be preceded by a betrothal – kiddushin. The betrothal is accomplished through a formal kinyan – agreement – between the man and woman. This kinyan can take various forms. One form is kesef. This consists of transmittal of money or an object of value. The man gives the woman the object. He explains to the woman that through this transmittal he intends to betroth her. The woman’s acceptance of the money or object signifies her agreement to the kiddushin. Once the betrothal is completed, the woman is considered the wife of the man. Any subsequent affair is considered an act of adultery.
In modern times, the sole means of betrothal that we employ is the kinyan of kesef described above. According to halachah, any object of value may be used for this kinyan. However, the universal custom is for the man to give the wife a ring or marriage band. What is the reason for this custom?
Sefer HaChinuch explains that the ring is an especially appropriate object for this kinyan. Kiddushin is more than an agreement. The kinyan affects a change in the legal status of the woman. With the completion of kiddushin, the woman is no longer single and unattached. She is now the wife of the man. This change of status has important implications in halachah. She is prohibited to enter into sexual relations with any other man. These relations are adulterous. The ring effectively represents this concept. The ring is placed upon the woman’s finger. A visible change is affected. This physical, visual change in the woman represents and is consistent with the legal change affected by the kiddushin.
The Right of the Firstborn to a Double Portion of his Father’s Estate
And it will be that on the day that he wills his property to his sons, he may not give preference to the son of his beloved wife over the firstborn son of his unloved wife. (Devarim 21:16)
This pasuk discusses the rights of a firstborn son. This son inherits a double portion of his father’s property. In other words, when upon the father’s death his estate is divided, the firstborn son receives a portion that is double the value of the portions received by the other sons. A simple illustration will clarify this law. A man dies and is survived by four sons. His estate is divided into five portions. The firstborn son receives two of the portions – two fifths of the estate. Each of the other sons receives one fifth of the estate.
Our pasuk deals with a special case. In this case, the husband has two wives. One wife is beloved to the husband. The second wife does not have the same relationship with her husband. The firstborn son is the child of the less preferred wife. This son should receive the double portion. The other sons should receive a single portion. However, the husband wishes to interfere with the rule of inheritance. He wishes to award the double portion to the son of the more beloved wife and provide the other sons with a single portion. As a result, the firstborn son will receive a single portion. The Torah prohibits this manipulation. The firstborn son must receive his double portion. His right to this double portion cannot be transferred to the son of the more beloved wife.
Rabbaynu Ovadia Sforno asks a question. According to our pasuk the father must respect the rights of the firstborn son. Yet, we see that the Avot – our forefathers – seemed to have disregarded this rule. The most obvious example of this disregard involves Yaakov. Reuven was Yaakov’s firstborn son. His mother was Leyah. Reuven did not receive a double portion in the Land of Israel. Yaakov gave this double portion to Yosef. Yosef was the son of Rachel. Rachel was Yaakov’s more beloved wife. It seems that Yaakov transferred the double portion due the first born to another of his sons. He violated the injunction in our pasuk! Furthermore, the Torah condones this decision!
There are various answers to this question. Sforno maintains that Yaakov’s behavior and the Torah’s endorsement of his decision provide a fundamental insight into our pasuk. According to Sforno, the passage does not prohibit the father from interfering with the normal pattern of inheritance. The father may show preference to a younger son at the expense of the firstborn son. However, our pasuk does restrict the circumstances in which this interference is permitted. It cannot be motivated by the father’s preference of one wife over the other. In other words, the father cannot discriminate against his firstborn because of his relationship with the child’s mother.
Based on this interpretation of the injunction, Sforno answers his question. Yaakov did not discriminate against Reuven because of the son’s mother. Yaakov made his decision based upon his insight into his sons. He concluded that Yosef was more deserving of the special treatment normally accorded the firstborn. This conclusion dictated that Yosef inherit a double portion in the Land of Israel. This same analysis indicated that Reuven should be deprived of this right.
Sforno explains that his interpretation of our pasuk is supported by another passage. In Sefer Divrai HaYamim, it is stated that Yosef received the portion of the firstborn because Reuven desecrated his father’s bed. Although the exact nature of Reuven’s misdeed is unclear from this passage, this passage expressly states that the transfer of the firstborn’s privileges from Reuven to Yosef was occasioned by Reuven’s improper behavior. This supports Sforno’s reasoning. The right can be transferred from the firstborn to another son. However, this interference in the pattern of inheritance cannot be occasioned by a preference of one wife over another. 
The Requirement to Provide a Prompt Burial Even for a Criminal
You should not hang his corpse from a tree. Rather, you should bury it on that day. For the hanging is a curse to the L-rd. And you should not defile your land, which Hashem your G-d, gives to you as a portion. (Devarim 21:23)
The Torah requires that the departed receive immediate burial. Our pasuk explains that this law applies even to a criminal executed by the courts. The criminal must receive a proper burial within the day.
This command responds to the argument that the body of the executed criminal should be prominently displayed. What more vivid discouragement can the courts provide to an individual considering a violation of the Torah? We are commanded that despite this consideration, the criminal must receive prompt burial. There are various explanations offered by the commentaries for the application of this law to criminals. These authorities also dispute the translation of the pasuk.
Maimonides explains that the law is an expression of respect for humanity. Even a criminal is a member of the human race. As such, the body of the criminal must be treated with dignity. Maimonides translates the pasuk somewhat differently in order to accommodate his explanation.
Rashi offers a fascinating explanation of the law. He comments that even a criminal is created in the image of Hashem. Therefore, the display of the criminal’s body might reflect poorly on Hashem in who’s image the criminal was created. This negative reflection on Hashem must be minimized through legislating a prompt burial.
Rashi is making an important point. At times we seem to be surrounded by evil. The news is dominated by demonstrations of humanity’s depravity. It may seem that the human race in inherently evil. This is not the case. We must always realize that every human being is created in Hashem’s image. This design provides us with the potential to do tremendous good. We have the ability and the free will to choose a productive and meaningful life. The criminal becomes engrossed in evil as a result of his or her own choices. There is no innate disposition which condemns humanity to evil.
Rashi maintains that for this reason, we cannot allow the body of the criminal to remain hanging. We do not want to unduly emphasize the human’s potential for evil. Instead, we want to stress the opportunity available to every person to do good.
Rashbam takes a completely different approach to explaining the law and translating the pasuk. Rashbam seems to premise his comments on the assumption that a successful legal system requires the support and respect of those governed. Without cooperation, the law becomes a form of tyranny.
He explains that some elements of the law seem to us to be very harsh. It may be difficult for us to accept as just and deserved the punishments indicated by the Torah. This is especially true for the family of a person sentenced to death. Imagine the feelings of the family of an individual executed for a violation of the Shabbat. It may be very difficult for these people to appreciate the ultimate wisdom and justice of the punishment. The harsher and the more protracted the punishment, the greater the potential for deep resentment. Placing the body on display, for an unduly long period, unnecessarily torments the family. Such a policy will elicit their bitterness and resentment. In order to avoid this reaction, the Torah commands us to behave with sensitivity and bury the criminal promptly.
Lessons from the Mitzvah of Yifat Toar
And she should remove from herself the garment in which she was captured. She should dwell in your house. She should cry over her father and mother for a month. Afterwards you may come to her and take possession of her. And she will be your wife. (Devarim 21:13)
Our parasha contains the unique mitzvah of the captive woman – the yefat toar. What is this requirement or restriction created by this mitzvah? The Torah makes certain specific allowances for the soldiers of Bnai Yisrael in battle. For example, soldiers that invade and capture the territory of idolaters are permitted to eat foods that are normally prohibited. The most remarkable allowance granted to these soldiers is the right to enter into intimate relations with a captive woman. This is remarkable. The woman is not a member of Bnai Yisrael. The Torah strongly condemns intimacy with members of other faiths. Yet, in this specific circumstance, these relations are permitted.
The Torah carefully defines the limits of this allowance. For example, although the soldier is permitted to enter into extramarital relations with the captive, this may only take place on a single occasion. Also, the woman must be treated with at least a minimum level of sensitivity. The soldier may only be intimate with the woman in a private place.
After this first episode, the soldier’s relationship with the captive must be suspended. The woman is given the opportunity to convert. If she chooses to enter into Bnai Yisrael, the soldier may marry her. She is married in the same manner as any other Jewish woman and has exactly the same rights and privileges. If she chooses to not convert, the man must release her and grant her complete freedom.
Why does the Torah permit this unusual relationship? The Torah recognizes that war awakens powerful emotions and drives within the soldier. These drives are difficult or impossible to completely suppress. If the Torah would attempt to deny and completely check these potent desires, the soldier would ignore the Torah. Therefore, the Torah attempts to allow expression of these powerful urges in a controlled manner.
Specifically, the Torah does not ignore or attempt to deny the soldier’s inappropriate urge to sexually engage the captive woman. The Torah does set limits and create boundaries. The overpowering urge must be contained within these boundaries.
Our pasuk describes part of the process that takes place after the initial intimacy. The pasuk describes three steps that are taken. First, the yefat toar is required to remove the clothing she wore at the time of captivity. Second, she is taken into the soldier’s home. Third, she mourns her father and mother. What is the reason for each of these three steps?
These steps demonstrate a special characteristic of the Torah. The Torah combines a deep perception of human nature with an insightful design for personal improvement. Let us consider how this characteristic is expressed in these three steps.
There is a general consensus among the commentaries regarding the first two steps. In order to understand the purpose of these first two steps, one important premise must be identified. The Torah only reluctantly allows the initial intimate encounter between the soldier and the yefat toar. Also, the Torah recognizes that the soldier’s infatuation with this woman may be extreme. Therefore, the Torah allows him to marry the captive once she converts. However, the Torah does not favor this union. Like a parent who is unhappy with his son’s choice in an intended marriage, the Torah attempts to discourage the union. The Torah’s approach is to undermine the infatuation and accentuate the captive’s shortcomings. We can now understand the commentaries comments on the first two steps outlined in our pasuk.
Why is the yefat toar required to abandon her clothing? Rabbaynu Avraham ibn Ezra suggests that the Torah recognizes that provocative clothing adds to a woman’s allure. Perhaps, the clothing contributed to the soldier’s initial attraction to the yefat toar. The Torah commands that the clothing be removed. Without these garments, the woman may not be as alluring. Rashi adds that, among the heathen nations, it was customary for the young women to adorn themselves in beautiful garments at times of war. According to Rashi, it is likely that the woman’s clothing added to her attraction. Therefore, the Torah’s efforts to discourage a permanent union require that the yefat toar abandon these beautiful clothes.
The second step mentioned in our pasuk is that the yefat toar must reside in the home of the soldier. This step is also an expression of the Torah’s determination to discourage a permanent union. Through living in his house, the captive will become more familiar to the soldier. It may not be completely true that familiarity leads to contempt. However, it is true that with familiarity, the woman will become less exotic. Rashi adds that the Torah hopes that she will become a burden or inconvenience. She will be in the way and under foot. She must be maintained, but contributes little to the household. It seems the Torah is attempting to foster mild resentment in the soldier towards the yefat toar.
The final requirement in the pasuk is that the captive mourns her mother and father. Rashi understands this requirement as a further expression of the Torah’s strategy for discouraging a marriage between the soldier and his captive. While this captive is mourning the daughters of Bnai Yisrael are rejoicing in the victory of their nation. The captive’s dour continence will not compare favorably with the cheerful dispositions of the women of Bnai Yisrael.
Chizkuni and others suggest that another theme is expressed in these three steps. The Torah only allows the soldier to marry the yefat toar if she converts to Judaism. She must make a complete break with her past. It seems that this consideration may explain the requirement that the captive live in the home of the soldier. She must leave her family and nation. Chizkuni suggests that this consideration explains the requirement for the yefat toar to abandon her clothing. These clothes are a remnant and expression of the captive’s past life. They create an attachment to the experiences and attitudes of the past – a life she must now abandon. She is required to remove these clothes as a step towards leaving her former life.
This consideration suggests an alternative explanation of the third step in the pasuk. The captive is required to mourn her father and mother. Many of the commentaries are troubled by this requirement. Mourning assumes death. Why is the captive required to mourn? Perhaps, her parents survived the battles and are alive! Some commentaries suggest that the last step in the pasuk is an expression of the Torah’s insistence that the yefat toar abandon her past. Rabbaynu Saadia Gaon suggests that she is not mourning the death of her parents. She mourns the loss of her parents’ culture and religion. She must discard the familiar and adopt a new set of beliefs and religion. This is difficult and engenders a feeling of loss and estrangement. This is the mourning in which the yefat toar engages.
Rabbaynu Ovadia Sforno takes this approach one step further. He contends that the yefat toar mourns the loss of her father and mother. However, she is not mourning them because they are dead. They may be alive. She mourns the loss of her parents because she is required to abandon them. She must completely sever her ties to her idolatrous past. This includes breaking off her relationship with her parents.
Maimonides suggests that another important consideration is expressed in the steps outlined in our pasuk. The Torah allows the soldier to experience intimacy with the yefat toar. He is allowed to give vent to his lusts. However, the Torah does not allow the soldier to conduct himself as a beast. His lust must be tempered with consideration and compassion. As explained above, he may not waylay the yefat toar on the field of battle and force himself upon her. He must take her to a private location before becoming intimate. Similarly, he must allow the captive to mourn the loss of her parents and culture. The soldier is expected to demonstrate compassion and empathy. The yefat toar is experiencing a tremendous trauma. The soldier cannot be insensitive to her personal tragedy.
 Rav Ahron HaLeyve, Sefer HaChinuch, Mitzvah 552.
 Sefer Divrai HaYamim I 5:1.
 Rabbaynu Ovadia Sforno, Commentary on Sefer Devarim 21:16.
 Rabbaynu Shlomo ben Yitzchak (Rashi), Commentary on Sefer Devarim 21:23.
 Rabbaynu Shemuel ben Meir (Rashbam) Commentary on Sefer Devarim 21:23.
 Rabbaynu Moshe ben Maimon (Rambam/Maimonides) Mishne Torah, Hilchot Melachim 8:1-5.
 Messechet Kiddushin 21b.
 Rabbaynu Avraham ibn Ezra, Commentary on Sefer Devarim 21:13.
 Rabbaynu Shlomo ben Yitzchak (Rashi), Commentary on Sefer Devarim 21:13.
 Rabbaynu Shlomo ben Yitzchak (Rashi), Commentary on Sefer Devarim 21:13.
 Rabbaynu Chizkiya ben Manoach (Chizkuni), Commentary on Sefer Devarim 21:13.
 Rabbaynu Saadia Gaon, Commentaries on Sefer Devarim 21:13.
 Rabbaynu Ovadia Sforno, Commentary on Sefer Devarim 21:13.
 Rabbaynu Moshe ben Maimon (Rambam/Maimonides) Moreh Nevuchim, volume 3, chapter :41.