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Rambam - 1 Chapter a Day

Hilchot Nizkei Mamon - Chapter Four

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Hilchot Nizkei Mamon - Chapter Four

1

When a person gathers sheep in a corral and locks them in with a gate that can withstand an ordinary wind, and [yet the sheep were able to] leave and cause damage, the owner is not liable.1 If [the gate] cannot withstand an ordinary wind or if the walls of the corral are shaky, [the owner] is not considered to have enclosed [the sheep] in a proper manner. [Thus, if they are able to] leave and cause damage, he is liable.2 Even if [the sheep] dug beneath [the gate3 to] get out, [the gate] was broken at night,4 or thieves broke it down, the owner of the sheep is liable [for the damage his sheep cause].5 If, however, the gate was strong and it was broken at night or thieves broke in, and then [the sheep] departed and caused damage, [the owner] is not liable.6 If the thieves took the sheep out and then they caused damage, the thieves are liable.

א

הַכּוֹנֵּס צֹאן לַדִּיר וְנָעַל בִּפְנֵיהֶן בְּדֶלֶת שֶׁיְּכוֹלָה לַעֲמֹד בְּרוּחַ מְצוּיָה וְיָצְאָה וְהִזִּיקָה פָּטוּר. וְאִם אֵינָהּ יְכוֹלָה לַעֲמֹד בְּרוּחַ מְצוּיָה אוֹ שֶׁהָיוּ כָּתְלֵי הַדִּיר רְעוּעִין הֲרֵי לֹא נָעַל בִּפְנֵיהֶן כָּרָאוּי וְאִם יָצָאת וְהִזִּיקָה חַיָּב. וַאֲפִלּוּ חָתְרָה וְיָצָאת וַאֲפִלּוּ נִפְרְצָה מְחִצָּה בַּלַּיְלָה אוֹ פְּרָצוּהָ לִסְטִים בַּעַל הַצֹּאן חַיָּב. הָיְתָה מְחִצָּה בְּרִיאָה וְנִפְרְצָה בַּלַּיְלָה אוֹ שֶׁפְּרָצוּהָ לִסְטִים וְיָצָאת וְהִזִּיקָה פָּטוּר. הוֹצִיאוּהָ לִסְטִים וְהִזִּיקָה לִסְטִים חַיָּבִים:

2

[The following rules apply when] a person breaks down a fence in front of an animal belonging to a colleague. If the fence was strong and sturdy, he is liable.7 If the wall was shaky, he cannot be held liable according to mortal law,8 but he has a moral obligation. Similarly, if a person places poison in front of an animal belonging to a colleague, he cannot be held liable according to mortal law,9 but he has a moral obligation.10

ב

הַפּוֹרֵץ גָּדֵר לִפְנֵי בֶּהֱמַת חֲבֵרוֹ וְיָצָאת וְהִזִּיקָה. אִם הָיָה גָּדֵר חָזָק וּבָרִיא חַיָּב. וְאִם הָיָה כֹּתֶל רָעוּעַ פָּטוּר בְּדִינֵי אָדָם וְחַיָּב בְּדִינֵי שָׁמַיִם. וְכֵן הַנּוֹתֵן סַם הַמָּוֶת לִפְנֵי בֶּהֱמַת חֲבֵרוֹ פָּטוּר מִדִּינֵי אָדָם וְחַיָּב בְּדִינֵי שָׁמַיִם:

3

When a person brings an animal belonging to a colleague to crops belonging to a third individual, the person who brought the animal there is liable.11 Similarly, if a colleague hit an animal with a switch until it walked to crops belonging to a third individual, the person who switched it is liable.

ג

הַמַּעֲמִיד בֶּהֱמַת חֲבֵרוֹ עַל גַּבֵּי קָמַת חֲבֵרוֹ הַמַּעֲמִיד חַיָּב לְשַׁלֵּם מַה שֶּׁהִזִּיק. וְכֵן אִם הִכִּישָׁהּ עַד שֶׁהָלְכָה לְקָמַת חֲבֵרוֹ וְהִזִּיקָה זֶה שֶׁהִכִּישָׁהּ חַיָּב:

4

When a person entrusts his animal to an unpaid watchman, a paid watchman, a renter or a borrower, these individuals assume the owner's responsibilities. If [the animal] causes damages, the watchman is held liable. When does the above apply? When he did not guard the animal at all. If, however, he guarded the animal in an excellent manner, as he should,12 and it got loose and caused damage, the watchman is not liable, and the owners are liable, even if the animal kills a human being.13Should the watchman guard the animal in an inferior manner,14 he is not held liable if he is an unpaid watchman.15 If he is a paid watchman, a renter or a borrower, he is held liable.16

ד

הַמּוֹסֵר בְּהֶמְתּוֹ לְשׁוֹמֵר חִנָּם אוֹ לְנוֹשֵׂא שָׂכָר אוֹ לְשׂוֹכֵר אוֹ לְשׁוֹאֵל נִכְנְסוּ תַּחַת הַבְּעָלִים וְאִם הִזִּיקָה חַיָּב הַשּׁוֹמֵר. בַּמֶּה דְּבָרִים אֲמוּרִים בִּזְמַן שֶׁלֹּא שְׁמָרוּהָ כְּלָל. אֲבָל אִם שְׁמָרוּהָ שְׁמִירָה מְעֻלָּה כָּרָאוּי וְיָצָאת וְהִזִּיקָה הַשּׁוֹמְרִים פְּטוּרִין וְהַבְּעָלִים חַיָּבִים אֲפִלּוּ הֵמִיתָה אֶת הָאָדָם. שְׁמָרוּהָ שְׁמִירָה פְּחוּתָה אִם שׁוֹמֵר חִנָּם הוּא פָּטוּר וְאִם שׁוֹמֵר שָׂכָר אוֹ שׂוֹכֵר אוֹ שׁוֹאֵל הוּא חַיָּבִין:

5

If [a person] leaves an animal in the sun and it gets loose and causes damage, even if it must dig [under the fence to do so], the one who left it in the sun is liable. [The rationale is that because of] the discomfort [the animal] feels, it will do anything it possibly can to flee.17

ה

הִנִּיחָהּ בַּחַמָּה אֲפִלּוּ חָתְרָה וְיָצָאת וְהִזִּיקָה חַיָּב זֶה שֶׁהִנִּיחָהּ שָׁם. שֶׁכֵּיוָן שֶׁהִנִּיחָהּ בַּחַמָּה הֲרֵי הִיא מִצְטַעֶרֶת וּבוֹרַחַת וְעוֹשָׂה כָּל שֶׁאֶפְשָׁר לָהּ לַעֲשׂוֹת:

6

When [a person] gives his animal to a deaf mute, a mentally incompetent individual or a minor18 to watch, the owner is liable. [This applies] even if the ox is tied, for an ox - and similarly other [animals] - will break open the knot and go out and cause damage.19 Even if the animal was guarded in an excellent manner, and it dug [under the fence] and escaped and caused damage, the owners are liable.20

ו

מָסַר בְּהֶמְתּוֹ לְחֵרֵשׁ שׁוֹטֶה וְקָטָן אַף עַל פִּי שֶׁהָיָה הַשּׁוֹר קָשׁוּר הַבְּעָלִים חַיָּבִין. שֶׁדֶּרֶךְ הַשּׁוֹר וְכַיּוֹצֵא בּוֹ לְהַתִּיר הַקֶּשֶׁר וְלָצֵאת וּלְהַזִּיק. אֲפִלּוּ שְׁמָרוּהָ שְׁמִירָה מְעֻלָּה וְחָתְרָה וְיָצְאָה וְהִזִּיקָה הַבְּעָלִים חַיָּבִים:

7

[The following rules apply when] a person entrusts his ox to five men, one of them was negligent, and the ox escaped and caused damage. If all five are required to guard the ox, the person who was negligent is liable.21 If the ox can still be watched by the others, they share in the liability.22

ז

מָסַר שׁוֹרוֹ לַחֲמִשָּׁה וּפָשַׁע בּוֹ אֶחָד מֵהֶן וְיָצָא וְהִזִּיק אִם אֵינוֹ מִשְׁתַּמֵּר אֶלָּא בַּחֲמִשְּׁתָּן זֶה שֶׁפָּשַׁע בִּשְׁמִירָתוֹ חַיָּב. וְאִם מִשְׁתַּמֵּר בִּשְׁאֵרָן אַף אֵלּוּ הַנִּשְׁאָרִין חַיָּבִין:

8

[The following rules apply if a person] borrowed an ox under the presumption that it was an ordinary ox, and it was discovered that it had already been classified as one that gores. If the borrower knew that it had a tendency to gore,23 the owners are required to pay half the damages, for wherever the ox goes, it remains the owner's property.24 The borrower is also required to pay half the damages, because even if it had been an ordinary ox, as he had thought, he would have been required to pay half the damages, for he knew that the ox had a tendency to gore.25 If, however, the borrower did not know of this tendency, he is not liable at all,26 and the owners must pay the entire amount of the damages.

ח

שְׁאָלוֹ בְּחֶזְקַת תָּם וְנִמְצָא מוּעָד. אִם יָדַע הַשּׁוֹאֵל שֶׁהוּא נַגְחָן הַבְּעָלִים מְשַׁלְּמִים חֲצִי נֵזֶק שֶׁכָּל מָקוֹם שֶׁהוּא הוֹלֵךְ הֲרֵי שֵׁם בְּעָלָיו עָלָיו. וְהַשּׁוֹאֵל מְשַׁלֵּם חֲצִי נֵזֶק. שֶׁאֲפִלּוּ הָיָה תָּם (כְּשֶׁעָלָה בְּדַעְתּוֹ) חֲצִי נֵזֶק הָיָה מְשַׁלֵּם שֶׁהֲרֵי יָדַע שֶׁהוּא נַגְחָן. וְאִם לֹא יָדַע שֶׁהוּא נַגְחָן אֵין הַשּׁוֹאֵל חַיָּב כְּלוּם וְהַבְּעָלִים מְשַׁלְּמִין נֵזֶק שָׁלֵם:

9

When a borrower borrows an ox that is classified as an ordinary ox, and it becomes classified as a goring ox when in the possession of the borrower, it is removed from that category when it is returned to its owner. Since the domain [under which the animal is] changes, its classification also changes. [If the ox gores,] the owners must pay half the damages, and the borrower is not held liable at all, for he returned it to its owners.

ט

שְׁאָלוֹ כְּשֶׁהוּא תָּם וְהוּעַד בְּבֵית הַשּׁוֹאֵל וְהֶחֱזִירוֹ לִבְעָלָיו חָזַר לְתַמּוּתוֹ. הוֹאִיל וְנִשְׁתַּנֵּית רְשׁוּתוֹ בָּטְלָה הַהַעֲדָה וְהַבְּעָלִים מְשַׁלְּמִין חֲצִי נֵזֶק וְהַשּׁוֹאֵל פָּטוּר שֶׁהֲרֵי הֶחֱזִירוֹ:

10

When a watchman accepts responsibility only for watching the body of an animal [entrusted to him], but [does not accept responsibility] for the damage it causes, if [the animal] causes damage the watchman is not held liable, and its owners are.27 If [the watchman] accepted responsibility [only] for the damages [the animal] causes, he is liable if it causes damage. If it is injured, the watchman is not liable, and the owners should sue the person who caused the injury.

י

שׁוֹמֵר שֶׁקִּבֵּל עָלָיו שְׁמִירַת גּוּף הַבְּהֵמָה בִּלְבַד אֲבָל לֹא שְׁמִירַת נְזָקֶיהָ וְהִזִּיקָה פָּטוּר מִלְּשַׁלֵּם וְהַבְּעָלִים חַיָּבִים. קִבֵּל שְׁמִירַת נְזָקֶיהָ וְהִזִּיקָה חַיָּב הַשּׁוֹמֵר. וְאִם הֻזְּקָה פָּטוּר וְהַבְּעָלִים עוֹשִׂים דִּין עִם הַמַּזִּיק:

11

When a watchman entrusts [an animal] to another watchman, [and it causes damage], the first watchman is liable to pay the person whose property was damaged. For whenever one watchman delegates [an entrusted object] to another watchman, he is liable.28 For the person whose property was damaged will tell him: "Why didn't you watch it yourself instead of delegating it to someone else? Pay me yourself, and sue the watchman to whom you delegated it." If, however, the watchman entrusted [the animal] to his son, a member of his household or one of his helpers, they assume the responsibility that was the watchman's, and they are liable.29

יא

מָסַר הַשּׁוֹמֵר לְשׁוֹמֵר אַחֵר הַשּׁוֹמֵר הָרִאשׁוֹן חַיָּב לְשַׁלֵּם לַנִּזָּק שֶׁהַשּׁוֹמֵר שֶׁמָּסַר לְשׁוֹמֵר חַיָּב. וַהֲרֵי הַנִּזָּק אוֹמֵר לוֹ לָמָּה לֹא שָׁמַרְתָּ אַתָּה בְּעַצְמְךָ וּמָסַרְתָּ לְאַחֵר שָׁלֵם לִי אַתָּה וְלֵךְ וַעֲשֵׂה דִּין עִם הַשּׁוֹמֵר שֶׁמָּסַרְתָּ לוֹ אַתָּה. מְסָרָהּ הַשּׁוֹמֵר לִבְנוֹ אוֹ לְבֶן בֵּיתוֹ אוֹ לִמְסַעֲדוֹ נִכְנְסוּ תַּחַת הַשּׁוֹמֵר וְחַיָּבִים:

12

[The following rule applies when] a watchman is liable to pay [for the damages an animal caused], but he is insolvent. If the animal that caused the damage is considered to be an ordinary animal, in which case half the damages must be paid from the body of the animal itself, the person whose property was damaged should take his due from the animal, and the sum that he collects should be considered to be a debt owed by the watchman to the owner of the animal.30

יב

כָּל שׁוֹמֵר שֶׁנִּתְחַיֵּב לְשַׁלֵּם וְאֵין לוֹ וְהָיָה הַמַּזִּיק תָּם שֶׁהוּא מְשַׁלֵּם חֲצִי נֵזֶק מִגּוּפוֹ הֲרֵי הַנִּזָּק מִשְׁתַּלֵּם מִן הַבְּהֵמָה שֶׁהִזִּיקָה וְיִשָּׁאֵר דְּמֵי מַה שֶּׁגָּבָה הַנִּזָּק חוֹב עַל הַשּׁוֹמֵר לְבַעַל הַבְּהֵמָה:

13

Whenever an animal causes damage to crops that are growing, the damage is assessed by comparison with a field sixty times the size of the crops that were damaged. The one who is liable - either the owner or the watchman - is obligated to pay that sum.31 What is implied? If [an animal] ate the amount of produce that would grow when a se'ah [of seeds] were sown in that field, we calculate the worth of an area in which sixty se'ah [of seeds] could be sown in that field, [evaluating] how much it would be worth [before the animal ate from it] and how much it is worth now. [The owner or the watchman] is liable for the remainder. Similarly, if the animal ate an amount of produce that would grow when a kav or a quarter of a kav were sown - [or even if it ate] one stalk of grain - the damages are assessed by comparison with a field sixty times the size of the crops that were damaged.

יג

כָּל בְּהֵמָה שֶׁהִזִּיקָה פֵּרוֹת מְחֻבָּרִין מְשַׁעֲרִין מַה שֶּׁהִזִּיקָה בְּשִׁשִּׁים וּמְשַׁלֵּם זֶה שֶׁנִּתְחַיֵּב לְשַׁלֵּם בֵּין הַבְּעָלִים בֵּין הַשּׁוֹמְרִים. כֵּיצַד. הֲרֵי שֶׁאָכְלָה בֵּית סְאָה שָׁמִין שִׁשִּׁים בֵּית סְאָה בְּאוֹתָהּ הַשָּׂדֶה כַּמָּה הָיָה שָׁוֶה וְכַמָּה הוּא שָׁוֶה עַתָּה אַחַר שֶׁנִּפְסַד בּוֹ הַבֵּית סְאָה וּמְשַׁלֵּם הַשְּׁאָר. וְכֵן אִם אָכְלָה קַב אוֹ רֹבַע אֲפִלּוּ קֶלַח אֶחָד שָׁמִין אוֹתוֹ בְּשִׁשִּׁים:

14

When, [by contrast,] an animal ate fruit that ripened and no longer needed [the nurture of] the land, [the owner of the animal is required to] pay the full value of ripe produce. If [the animal ate] a se'ah, he must pay for a se'ah. If [it ate] two se'ah, he must pay for two se'ah. [The following laws apply if an animal] ate the fruit of one date palm, or a person gathered the fruit of a colleague's date palm and ate it. If it was a Roman date palm, whose fruit is not of very high quality, it should be measured in comparison with a orchard of date palms sixty times the size of its land. If it was a Persian date palm or the like, whose fruit is of very high quality, the date palm should be evaluated individually. An assessment should be made of its worth before the fruit was eaten and its worth after the fruit was eaten.

יד

אָכְלָה פֵּרוֹת גְּמוּרִין שֶׁאֵין צְרִיכִים לַקַּרְקַע מְשַׁלֵּם דְּמֵי פֵּרוֹת גְּמוּרִין בִּשְׁוֵיהֶן אִם סְאָה דְּמֵי סְאָה וְאִם סָאתַיִם דְּמֵי סָאתַיִם. הֲרֵי שֶׁאָכְלָה פֵּרוֹת דֶּקֶל אֶחָד וְכֵן הַלּוֹקֵט פֵּרוֹת דֶּקֶל חֲבֵרוֹ וְאָכַל אִם הָיָה דֶּקֶל רוֹמִי וְכַיּוֹצֵא בּוֹ שֶׁאֵין הַתְּמָרִים שֶׁלּוֹ יָפוֹת מְשַׁעֲרִין אוֹתוֹ בְּשִׁשִּׁים עַל גַּב הַקַּרְקַע. וְאִם דֶּקֶל פַּרְסִי וְכַיּוֹצֵא בּוֹ הוּא שֶׁהַתְּמָרִים שֶׁלּוֹ יָפוֹת בְּיוֹתֵר מְשַׁעֲרִין הַדֶּקֶל בִּפְנֵי עַצְמוֹ כַּמָּה הָיָה שָׁוֶה וְכַמָּה הוּא שָׁוֶה עַתָּה:

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Footnotes
1.

For he has done all that could be expected of him to watch his sheep.

2.

For he is considered to be negligent.

3.

If, however, they dug under another part of the corral, the owner is not liable, for their exit has nothing to do with his negligence (Shulchan Aruch, Choshen Mishpat 396:1).

4.

If the walls were broken during the day, and the owner did not fix them, he is considered to be negligent.

5.

Although the damage is considered to have been caused by forces beyond the owner's control, since this damage was preceded by acts of negligence on the part of the owner, he is liable. See Chapter 2, Halachah 15.

6.

The damage is considered to have been caused by forces beyond the owner's control. Even if the owner is informed that the gate to his corral was broken at night, he is not obligated to fix it until the following day (Shulchan Aruch, loc. cit.:2).

7.

The Ra'avad and the Tur maintain that the person who broke the fence is not liable unless he leads the animal out. The Rambam's ruling is quoted by the Shulchan Aruch (Choshen Mishpat 396:3), while the Ramah cites the other views.See the Maggid Mishneh, who questions the difference between this law and the previous one, which states that thieves are not liable unless they actually take the animal out of the corral.

8.

Since the owner is considered negligent in leaving the fence shaky, he is held liable for the damage the animal caused. Needless to say, the person who broke the wall down is liable for the damage to the wall, even though it was shaky.

9.

He is considered to have been merely an indirect cause (grama).

10.

See Chapter 2, Halachah 19.

11.

He is considered to be a direct cause of the damage.

12.

I.e., enclosing it behind a gate capable of withstanding winds of unusual force.

13.

The wording of this halachah has raised questions for there is an obvious difficulty: If the watchmen guarded the animal in an excellent manner, why is the owner liable? The Maggid Mishneh explains that the liability refers only to damage caused by the animal by goring. (See Chapter 7, Halachah 1.) The Kessef Mishneh refers to a responsum purported to have been sent by the Rambam to the Sages of Lunil, which states that there was a printing error and the text should read: If, however, they guarded the animal in an excellent manner, as they should, and it got loose and caused damage, the watchman is not liable. If the watchman guarded the animal in an inferior manner, he is not held liable if he is an unpaid watchman. Instead, the owners are liable, even if the animal kills a human being. The watchman is held liable if he is a paid watchman, a renter or a borrower.In his Shulchan Aruch (Choshen Mishpat 396:8), Rav Yosef Karo quotes the interpretation of the Maggid Mishneh. The Sefer Me'irat Einayim 396:18 questions this, referring to Karo's Kessef Mishneh.

14.

Enclosing it behind a gate capable of withstanding ordinary winds.

15.

For an unpaid watchman is not expected to take as thorough care of an animal as a paid watchman. See, however, note 13.

16.

Such watchmen are expected to watch the animal in a thorough manner.

17.

The Tur and the Ramah (Choshen Mishpat 396:5) state that even if the person tied the animal with a strong rope, he is liable if it breaks loose in these circumstances.

18.

All of these three types of people are considered mentally incompetent. They are not responsible for their actions, and the owner is considered negligent for charging them with watching his animal.

19.

The owner is considered negligent because these individuals will frequently play with the rope, and by doing so loosen the knot, enabling the animal to break free.

20.

Although escaping in this manner is considered to be a factor beyond the owner's control, since he was originally negligent in entrusting the animal to a mentally incompetent person, he must bear the consequences.The Ra'avad objects to the Rambam's ruling. It is, however, accepted by the Shulchan Aruch (Choshen Mishpat 396:6).

21.

For the damage is due to his negligence.

22.

For had they not been negligent as well, the ox would not have escaped. Although the Shulchan Aruch (Choshen Mishpat 396:7) appears to favor the Rambam's ruling, it also quotes the opinion of the Tur, which states that the person who is negligent shares the liability only when the others tell him that because of his negligence, they are withdrawing their responsibility. Otherwise, it is they who are liable, and not he.

23.

But did not know that it had been placed in the category of a goring ox.

24.

I.e., when an animal is sold, its status is changed with the change in ownership. (See Chapter 6, Halachah 6.) This, however, does not apply when it is merely borrowed (Kessef Mishneh).

25.

The Ra'avad objects to the Rambam's ruling, explaining that it applies only when the court takes possession of the ox.

26.

For it is more difficult to guard an ox that has a tendency to gore, and the borrower did not accept this responsibility.

27.

The Rambam's statements imply that if the watchman makes no specific statement with regard to whether or not he is responsible for the damages the animal causes, he is liable for the damage it causes (Maggid Mishneh). The Ra'avad understands the Rambam as making such an implication, and he objects, maintaining that the watchman should not be held liable. The Shulchan Aruch (Choshen Mishpat 396:8) follows the Maggid Mishneh's conception. They maintain that the principle followed by the Rambam should be accepted with the exception of a goring ox.

28.

The first watchman is considered negligent in entrusting it to a second watchman (even if an unpaid watchman entrusts it to a paid watchman). Therefore, the first watchman is liable, even in an instance when the object was destroyed by forces beyond the second watchman's control.

29.

The rationale is that a watchman will frequently delegate an entrusted article to these individuals. The owner should have taken this into account when he entrusted the article to the watchman at the outset.

30.

If the animal was already classified as prone to cause damages, this law would not apply, because the obligation would rest solely on the watchman's person. When, however, the animal is not placed in that category, since its own body is on lien for the damages, as stated in Chapter 1, Halachah 7, it is expropriated in lieu of payment.

31.

Since the produce was growing, it would be unfair for the person whose animal caused the damages to be required to pay for it as if it were harvested fruit that was damaged. Instead, one considers the damaged crops as a part in a larger whole, thus reducing the amount of the damages. A compromise is accepted that takes in consideration the positions of both the owner of the land and the owner of the animal.The produce is not evaluated individually, for this would inflate the amount of damages paid. Nor is its share evaluated in comparison with the entire field, for then the amount of damages would be unfairly low. Instead, it is evaluated when compared with an area sixty times its size as explained.A se'ah is six kabbin. A kab is 1.376 kilograms according to Shiurei Torah. Thus a se'ah is 8.256 kilograms. The area where a se'ah of seeds would be sown is 50 cubits by 50 cubits.

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The Mishneh Torah was the Rambam's (Rabbi Moses ben Maimon) magnum opus, a work spanning hundreds of chapters and describing all of the laws mentioned in the Torah. To this day it is the only work that details all of Jewish observance, including those laws which are only applicable when the Holy Temple is in place. Participating in one of the annual study cycles of these laws (3 chapters/day, 1 chapter/day, or Sefer Hamitzvot) is a way we can play a small but essential part in rebuilding the final Temple.
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