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Synopsis:

Who Owned the Luchos?
So, I took hold of the two Tablets, cast them out of my two hands, and shattered them before your eyes. --Devarim 9:17
Classic Questions
Why did Moshe "take hold" of the Tablets if he was already holding them? (v. 17)

Ohr haChayim: Until Moshe saw that the Jewish people had sinned, the Tablets hovered in the air above his hands ("upon my two hands"—v. 15). When he witnessed their sin, the Tablets lost their holiness, and he had to take hold of them and support them.

Midrash: The Tablets were a total of six tefachim (handbreadths) long. Moshe was holding two tefachim and G‑d was holding two tefachim at the other end, leaving two tefachim unsupported. Moshe strength­ened his grip, grabbed the Tablets and broke them...

Thus G‑d said to Moshe, "It was you who broke them."1

Why did Moshe break the Tablets? (v. 17)

Midrash: What can this be compared to? To a nobleman who wished to marry a woman through an agent. The agent went and found that the woman had been promiscuous with another man. What did the agent—who was totally innocent—do? He took the marriage document that was given to him by the nobleman, and tore it up. He said, "It is better that this woman be judged as a single woman and not as a married woman!" And this is precisely what Moshe did. When he saw what the Jewish people had done, he took the Tablets and broke them, so he could argue that if the Jewish people had seen the punishment for idol worship written there, they would not have sinned.2

The Rebbe's Teachings
To Whom Did the Tablets Belong? (v. 17)

In addition to the solutions of Ohr haChayim and the Midrash, the reason why Moshe needed to "take hold" of the Tablets can be understood by first addressing the following question:

Presumably, the Tablets were public property, since they were given to Moshe in order to be placed into the Ark (which belonged to the public), together with all the other parts of the Tabernacle.3 This begs the question: How could Moshe break the Tablets if they did not belong to him. Surely, Moshe was vandalizing public property!

Did the Tablets Have any Value?

At first glance, we might argue that the Tablets were in fact worthless, since in the desert stone has no market value, as houses are not built there. Therefore, Moshe was not guilty of causing any damage, since the Tablets were of no real value.

However this solution is clearly unacceptable, because:

Even if they are not used for building, stones do have some value; e.g., they can be used as simple furniture.4

According to our Sages, the first Tablets were made of sapphire, which is tremendously valuable.5

In any case, since the first Tablets were formed by G‑d Himself, they obviously had immense value.
"Damage" for the Public Good

Another possible approach to explain why Moshe was not guilty of damaging public property would be to argue that breaking the Tablets was actually for the public benefit. For, as the Midrash explains, Moshe broke the Tablets so as to reduce the punishment for which the Jewish people would be liable due to worshiping the calf. Thus, it is only logical that the public would wish its own property to be damaged, for the sake of a public benefit.

Alternatively, we might argue that the public did not enjoy normal rights of ownership over the Tablets, since no person was allowed to use them or benefit from them in any way. Thus, in breaking the Tablets Moshe was not denying the public any privileges of ownership.

However, both of the above arguments fail to take into account that the breaking of the Tablets ultimately appears to have been an act of theft. For even if we accept the argument that Moshe did not damage public property because he acted for the sake of the public good, or that he did not deny the public any privileges of ownership, we are nevertheless left with the problem that the unauthorized use (or abuse) of another's property is theft. And, in the case of theft, the law is that one may not steal another person's object even if it is for the owner's benefit (e.g., one intends to replace it with a superior item6); and likewise, one may not steal another's property7 even if the owner does not enjoy any privileges of ownership.8

Furthermore, the argument that the Jewish people had no privileges of ownership of the Tablets is simply not true, since the Tablets were given "to instruct" the Jewish people,9 and Divine instruction is surely a tremendous privilege indeed.

Joint Ownership of the Tablets?

Clearly, the Tablets were not public property, otherwise Moshe would have had no right to break them.

Perhaps then it could be argued that they were in fact private property in which each member of the Jewish people had their own share. This notion would appear to be supported by the teaching that when saying the Ten Commandments, G‑d addressed the Jewish people in the singular, rather than the plural, since He was speaking to every single Jew directly and personally.10 Thus, the Tablets themselves, which contained the Ten Commandments, likewise belonged to each and every Jew individually.

This opens a new argument in defense of Moshe's breaking of the Tablets. For, according to Torah law, the prohibition of theft only applies where the item stolen is worth more than a prutah (small coin). In our case, however, each person's individual share in the Tablets would surely have been negligible, so it could not be said that Moshe was guilty of theft, since in breaking the Tablets he did not misappropriate a prutah from any single person.

However, in the final analysis, this argument is untenable, because:

According to the view (cited above) that the Tablets were made of sapphire, it is likely that there was at least a prutah of value for every Jewish person.

In any case, the Torah forbids a person to steal even less than a prutah. It is only that the laws of restitution apply only if a prutah or more was stolen (Alter Rebbe's Shulchan Aruch, beginning of Laws of Robbery and Theft).

The Explanation

It would seem therefore that the first Tablets must have been Moshe's private property, otherwise he would have had no right to break them. In fact, this appears to be stated explicitly in scripture: "When He had finished speaking with him on Mount Sinai, He gave Moshe the two Tablets of the testimony,"11 on which the Talmud comments12 that G‑d gave them to Moshe "as a gift."

Thus these Tablets must have been an exception to the general principle that all parts of the Tabernacle had to be public property, a point stressed by the fact that the Tablets were given several months before the construction of the Tabernacle, indicating their existence as an independent entity.

Nevertheless, when Moshe received the Tablets from G‑d as a personal gift to him, he intended to give them to the Jewish people, as an act of generosity.13 But when Moshe saw the Jewish people worshiping the calf, he changed his mind and decided to break them instead. However, since Moshe had intended to give the Tablets to the Jewish people, he feared that his outright ownership of the Tablets (and the accompanying right to break them) had become somewhat confused. So, before breaking the Tablets, Moshe "took hold" of them once again, in order to establish his ownership of them unequivocally.

(Based on Likutei Sichos vol. 34, p. 51ff.)   https://www.chabad.org/parshah/article_cdo/aid/704624/jewish/Who-Owned-the-Luchos.htm
FOOTNOTES
1. Tanchuma 11
2.    Shemos Rabah 43:1
3.    see Rosh Hashanah 7a; Yoma 35b
4.    cf. Shemos 17:12
5.    Tanchuma, Ki Sisa 26
6.    See Shulchan Aruch, Choshen Mishpat 359:2
7.    See Alter Rebbe's Shulchan Aruch, Orach Chaim, Kuntres Acharon 435:2
8.    The distinction between damage and theft is that damage means reducing the value of another person's property, whereas theft is unlawful possession or use. Thus, one could be exempt from charges of damage if he could argue that he acted in the owner's best interests, whereas the mere use of another's property represents a transgression in itself, regardless of whether the owner benefits or not.
9.    Shemos 24:12
10.    Pesikta deRab Kahana, end of Parsha Bachodesh Hashlishi; Tanchuma (Buber) Yisro, par. 17
11.    Shemos 31:18
12.    Nedarim 38a
13.    see Nedarim ibid.

Translation:

1. On the verse (Deut. 9:17):

“So I grasped the two Luchot, cast them out of my two hands, and shattered them before your eyes”,

The Or HaChaim asks,

“Why did he have to grasp them? They were already in his hand”?

The Midrash states:

"(The length of the Luchot was six handbreadths) Moshe held on to two (handbreadths) and the Holy One, blessed be He, held onto two . . Moshe's hands became strong and he grasped the Luchot and broke them”

In another place (Avot D'Rabbi Natan), it states that the Elders grasped the Luchot and Moshe's hands became strong and he broke them. According to this, the precise wording of the verse, “I grasped the two Luchot” is understood since it emphasizes the grasping of the Luchot from G-d or from the Elders.

However, this requires explanation from the Talmud Bavli, and other places, where it does not mention that Moshe grasped the Luchot neither from G-d nor from the Elders. On the contrary, it states that G-d said to Moshe, “Well done for shattering them!”. Therefore what is the explanation of “I grasped”?

Moreover:

In Avot D'Rabbi Natan it states:

“(He looked and saw that the writing was flying off them, and he said: How can I give the Luchot to Yisroel that have nothing on them! So instead, I will grasp them and break them, as it states: ”I grasped etc.”.

Thus the Sages explain why Moshe said, “I will grasp them” – for this was a special grasping and holding - “I will grasp them and break them”.

One must understand – what is the aspect of this grasping?

2. One could say an explanation, by prefacing an explanation of a puzzling matter in the episode of the breaking of the Luchot:

The First Luchot - plainly derived from what is detailed regarding the Second Luchot - were given to Moshe in order to be placed in the Ark. It is probable, seemingly, that just as all the parts and objects of the Mishkan (and the Temple) are communal property, so too, also the Luchot that were written “to instruct them” – were given to all Yisroel (even though the Mishkan and the Ark did not yet exist).

(This is as it is explained in the Sifrei, even regarding the Second Luchot

(where it states, “hew for yourself”. Indeed, we find in many Midrashim that Moshe hewed them “within his tent”) –

that “they were only from (the property) of the community”.

As is explained in the commentators, it was for this reason, it required a special exemption of “hew for yourself – the remaining chips shall be yours”. For without this exemption, the leftovers would belong to the community. This is certainly so regarding the First Luchot, which were the “handiwork of G-d“).

Accordingly, the breaking the Luchot contains an aspect of damaging communal property (money)?

One may not answer that the stones possessed no value, since they did not build houses in the desert (and so forth) (and had no use for them).

For:

1. The stones could be used for other things, as it states, “They took a stone . . and sat on it”, or for the making a pillar (מצבה) etc.
2. It expressly states in the Sages that (even) the First Luchot were of sapphire, which is a precious stone.
3. In any event, since the Luchot were the “handiwork of G-d”, certainly, because of this itself, their worth and value were immense.

3. Seemingly, one could say that the law of a Damager (מזיק) has no comparison to the breaking the Luchot, for two reasons:

1. It states in the homilies of the Sages that Moshe‘s intent in breaking the Luchot was for Yisroel‘s benefit – in order to lighten their punishment.

(For the breaking the Luchot was like the tearing up of a Ketubah, where they would then be judged as a “unmarried woman” and not like a “married woman”).

Indeed, when one destroys a fellow’s property in a manner that it is of benefit to the fellow, there is, seemingly, in this - no incurrence of the law of a damage (דין מזיק).

(To note from the aspect of Bal Tashchit (senseless damage or waste) - although a person must “be careful of his possessions, not to lose, ruin or damage them”, this is just “if he does this in the manner of destruction or ruin. However, if it is in order to fix it, it is permissible to ruin it.”)

2. Since the Luchot were given in order to be placed in the Ark, Yisroel did not have the ability to enjoy and utilize them (הנאה ותשמיש)

(Not even like a Sefer Torah, that they could, at least, read from. On the contrary, “a Sefer Torah is meant to be listened to”, “one has benefit and fulfils by listening to it”).

Moreover, it is simple that the Luchot were not given to be sold. Therefore, Yisroel did not have any ownership of the Luchot (and it is worse than ownership in things that one may not have enjoyment (Issurei Hana'ah/איסורי הנאה). Therefore, the law of a Damager does not apply here.

However, it is still problematic:

For even if one were to say that there is no Law of Damage here, nevertheless, there is the prohibition of theft (גזילה) – for these two above reasons do not remove the matter from the law of theft.

• The first reason - that one who damages the property of his fellow, for his fellow’s sake - does not have the Law of a Damager – does not apply to theft. For even theft, which is for the benefit of the victim is still prohibited. This is like the law that, “It is prohibited to steal even for the purpose of recompensing with something that is worth more than what was stolen”.

• The second reason – that the ownership of the Luchot was somewhat like that of ownership of Issurei Hana'ah (except it was less than this) – does not permit the prohibition of theft. This is like the explanation of the Alter Rebbe (in his Kuntras Acharon of Hilchot Pesach) regarding Issurei Hana'ah, that even though “he has no merit in its body, since it is forbidden for him to derive benefit from it”,

(Therefore, there is no law of Law of a Damager since “nothing was lost”),

Nevertheless, “it is not entirely ownerless to the extent that whoever wants to take it, by sinning, should come and take it forcefully from the owners” (and so too regarding the Luchot that are not “entirely ownerless”).

(Regarding the reasoning of the matter, one could say that prohibition of theft and robbery are different from the prohibition of a Damager:

The prohibition and obligation of a Damager is because he causes loss from his fellow. Therefore, the Law of a Damager does not pertain, except when there exists in the object of the damaged property, a benefit and enjoyment to the victim

(Because of this, if one damages his fellow’s money for his fellow‘s benefit, he is not called a Damager, as aforementioned, since he is not causing loss to this fellow property. On the contrary, it brings him benefit and fixing that is considered “equal” to the value of the loss)

Whereas the prohibition of theft and robbery resides in that which, one takes an object from the domain of his fellow, and brings it into his domain. The matter is not dependent on the worth of the object (and his enjoyment or use of the object) but rather in the essential ownership of his fellow).

Moreover, and this is paramount: The Luchot were given for “instruction”. This is the greatest enjoyment, for even the Mitzvot themselves were not given for enjoyment.

According to all the aforementioned, the question returns to its place:

Even if one were to say that the breaking of the Luchot does not contain the Law of a Damager – nevertheless, in any event, there is a prohibition of theft.

One cannot answer that there is no aspect of theft until one makes a Kinyan (an act of possession) in the object of the theft. For in this case, Scripture expressly states (as aforementioned):

“I grasped the two Luchot, cast them . .and shattered them etc.”

In other words, before the breaking of the Luchot there was a (unique) grasping of them - in order to break them.

(Indeed, even if one steals in order to cause the loss of the object, nevertheless, he is still a thief, just as if one takes a coin from his fellow in order to throw it into the sea – as soon has he takes it, he has the law of a thief, and he is required to return it).

4. Seemingly, one can answer according to what the Sages state on the verse,

“I am the L-rd, your G-d” (in the singular) –

that the Ten Commandments were said to each one of Yisroel individually, and each one of Yisroel said, “the Word is speaking to me”.

According to this, one could say that although the Ten Commandments are for “instruction”– engraved on the stone Luchot, and the Luchot themselves, they were not given in a manner that they are communal property (and there is no ownership for an individual, independently).

Rather, all Yisroel were partners in the Luchot (and each one of Yisroel has ownership).

Therefore, since, each one of Yisroel did not possess the worth of a Perutah (coin) (in the Luchot), therefore, the Negative Commandment of “you shall not steal“ did not exist.

For “the Negative Commandment of ‘you shall not steal’ only applies when the object is worth a Perutah. For the Torah only obligated in things of monetary value and something worth less than a Perutah, is not considered money“.

However, this is not so. For nevertheless, “it is Biblical that one may not steal anything”. For “although something that is worth less than a Perutah is not called “money” and there is no requirement to return it, nevertheless “Chatzi Shiur (prohibitions performed with less than the quantity proscribed by Torah law) is Biblically prohibited, from the onset”.

Moreover, and paramount:

Even regarding Issurei Hana'ah, that do not have a trace of the proscribed amount - it is not ownerless/Hefker etc., as aforementioned, in the words of the Alter Rebbe.

5. However, seemingly, there is a place to judge this according to Rashi’s view - that less than the worth of a Perutah is not “yours”.

(Where he explains on the topic that “all Yisroel are able to sit in one Sukkah“, that,

“It is impossible that it belongs to everyone, since each one does not possess the worth of a Perutah, except by borrowing”.

Thus, we see that without each one “possessing the worth of a Perutah”, it is not called “yours”)

Therefore, in our case, regarding the Luchot, where each one does not possess the worth of a Perutah it was not “yours” and there is no law of ownership. Therefore, the prohibition of theft does not apply.

However, it is impossible to say so.

For:

(In addition to that which one could say, that Rashi’s intent is just regarding the money of partners who join together of their own volition. For only then do we require the worth of a Perutah for each one; and if not, it is not considered “yours”. Whereas, with money, that is granted to them from another,

(Like in our case where G-d granted to them the Luchot, through Moshe)

even when each person has not amassed the worth of a Perutah, it is “yours”. For)

The entire aforementioned supposition - to say that the Luchot were not given to Yisroel as communal property (similar to all the things in the Mishkan and the Temple) but rather as a partnership in the objects, is because for that reason, it is then possible to say that each person of Yisroel has an individual ownership in the Luchot (as aforementioned).

However, according to the aforementioned (according to Rashi’s view) we find that, in the role of partners, each person of Bnei Yisroel does not even possess any ownership in the Luchot (for each person does not individually possess a worth of a Perutah)!

In any event, the words of the Alter Rebbe are in force.

6. One could say the explanation of this, by prefacing:

Although the Luchot had to be placed in the Ark, nevertheless there is an essential difference between the Luchot versus all the other parts of the Mishkan. For even after they were brought into the Mishkan, the Luchot are not actually part of the Mishkan but rather are an independent aspect. This is itself proven by that which they were given to Moshe many months before the making of the Mishkan. However, afterward Moshe was commanded to make another Ark and place them in it – and all this was in the Mishkan.

According to this, one could say that there is a ramification between all the parts of the Mishkan versus the Luchot regarding the law of their ownership. For although all parts of the Mishkan must belong to the public (and communal funds), the Luchot (that preceded the Mishkan) are different - for they do not have to be from public funds.

We expressly find such an opinion regarding the second Luchot - in the Tanchuma of our Parsha.

The Tanchuma states:

"Hew out for yourself" - in your merit, and it shall be yours. He (G-d) said, “Moshe, I have given it to you, and you behaving generously - gave it to them”.

(In other words, from the onset they were given to Moshe, yet he behaved generously and gave it to Yisroel).

Therefore, one must say, that although the Luchot - after the erecting of the Mishkan (and the building of the Beit HaMikdash) needed to be placed in the Holy of Holies - nevertheless (according to this opinion) they were “yours” (Moshe‘s) but he generously “gave it to them“.

According to this, one could say that regarding the first Luchot, everyone agrees that they were Moshe’s property.

This is as it states:

“And He (G-d) gave to Moshe - when He finished speaking to him . . two Tablets of the Testimony etc.”.

And as the Sages explain, the word, "He gave" is the wording of a “gift”.

Although seemingly, the giving to Moshe as a gift is - regarding (Divrei/words of) Torah.

(Namely, that the Torah was given to Moshe as a gift).

Nevertheless, the simple wording of Scripture, is that it refers to the giving of the Luchot (and this does not contradict that which Divrei Torah were given as a gift).

Therefore, according to the explanation that, “And He gave” is denotes a gift, one must say that also the Luchot themselves were given to Moshe as a gift.

7. According to all of the above, one can explain the precise wording of Scripture:

“So I grasped the two Luchot. . and shattered them etc.”.

Just as with the Second Luchot the Sages state (according to the opinion of the aforementioned Tanchuma) that Moshe behaved generously and gave them to Yisroel.

(And so it states in the Talmud, in the aspect of exegesis of Torah (פלפולה של תורה), that it was given solely to Moshe and his descendants “and Moshe behaved generously and gave them to Yisroel”).

Similarly, one could say that even regarding First Luchot, although G-d gave them to Moshe as a gift, nevertheless since Moshe was “generous” (טוב עין) it was not his intention to keep them for himself but rather to give them to Yisroel.

This is what Scripture informs us with,

“So I grasped the two Luchot. . and shattered them etc.”:

In order for it to be permissible for Moshe to break the Luchot (without any concern of the prohibition of theft etc.) they needed to be completely his. Therefore since, at the onset, Moshe intended to give them to Yisroel, there was a need for a unique grasping, in order to reject his previous thought (that he gives them to Yisroel), and to acquire them for himself, in order for them to be his, completely.

8. One could say according to Mussar and Chassidut:

The Sages state regarding the reason for G-d‘s saying,

“I am the L-rd, your G-d” - in the singular – was:

“To give an opening for Moshe to present a defense for the act of the Calf . .(saying) ‘It was not to them that You issued the command (You (plural) shall have no other gods) but only to me, alone’".

Similarly, and more than this – one could say regarding the breaking of the Luchot, that due to the Moshe's great love for Yisroel (אהבת ישראל), and his Mesirat Nefesh for Klal Yisrael, Moshe wanted to remove from Bnei Yisroel all connection to the aspect of the breaking of the Luchot. So much so, that all this would be just “his responsibility” alone. Therefore, he "grasped" the Luchot so that they should be entirely his (as aforementioned).

According to this, one could explain the statement of the Sages:

”The death of the Tzadikim is difficult before the Holy One, blessed is He, as breaking the Luchot".

Since the Torah of Truth compares and equates the aspects, it is understood that they are similar to each other,

(Not only in the magnitude of the difficulty and pain that they cause, but)

also in their content.

One could say that one of the explanations of this is:

The Sages state that the death of Tzadikim atones, and Tanya explains the innovation of this atonement versus the atonement that is attained through Korbanot/sacrifices. For Korbanot atone only on inadvertent sins (השוגג). Whereas through the demise of the Tzadik - "(G-d) works salvations in the midst of the earth -to atone for the sin of the generation, even over willful sins (הזדונות)”.

In other words:

Together with the great ascent of the soul of the Tzadik when he leaves the world. For then,

"his spirit and soul ascend to the source from which it was hewn" with “all of his actions, his Torah, and the Divine service in which he engaged all the days of his life".

Even in this ascent, not only does he not desert the flock of his sheparding, but more than this, in this ascent itself he accomplishes to “to atone for the sin of the generation, and even over willful sins” (the lowest extreme)!

This is also emphasized in the breaking of the Luchot, for although Moshe had no connection with the Sin of the Calf,

(not even to the degree that one has the ability to protest, since he was on the mountain).

Nevertheless, not only did he endeavor, to the point of actual Mesirat Nefesh, to effect atonement for the sin,

(As he said to G-d: “Now if You would bear (forgive) their sin, and if not, blot me out from your book etc.".

But moreover, even the breaking of the Luchot (which came due to the sin of the Calf) was done by Moshe in a way - that only he was responsible for it, as aforementioned.

9. In every death and in particular of Tzadikim - it says:

“and the living shall take to heart” (והחי יתן אל לבו) –

One may therefore learn from all of the above, regarding the day of Chof Menachem Av -

(which took place this year (5747) on Shabbat Kodesh Parshat Eikev) -

the day of the Histalkut of my father.

The reason, according to nature, for the Histalkut of my father, was due to his Mesirat Nefesh for the sake of the whole (of Yisroel). So much so, that because of this, he departed from the world before his time:

Seventy years and if with increase eighty years and his days were one hundred and twenty years,

because of Mesirat Nefesh etc.

It is understood that if regarding the passing of every Tzaddik they said that "(G-d) works salvations in the midst of the earth”.

How much more so is it with a Histalkut whose cause (according to nature, the nature of "the land") was because of Mesirat Nefesh for Klal Yisrael.

So is it is every year on the day of the Yahrzeit, when "these days are remembered and done", where it is drawn down, once more, and effects "salvations in the midst of the earth”. On the contrary - since every year (especially on the day of the Histalkut) the soul of the Tzadik rises with greater strength and greater vigor, it is understood that the “salvations” (due to this ascent) are even loftier.

All salvation and in particular salvations (in the plural), and in the midst of the earth bring close and hasten the main and inner general salvation - the true and complete Geulah through our righteous Moshiach, in a manner of “accomplishing salvations in the midst of the earth” - below ten handbreadths, even in the public domain, in physicality and simplicity, in our times, mamosh.

M’Sichas Shabbat Chol HaMoed Sukkot, Night and day of Simchat Torah 5726; Chof Menachem Av 5745)

Links:
Why-in-Heaven-Did-Moses-Break-the-Tablets.(Video)

Shattered (video)
Gutnick Chumash
Gutnick Chumash
Gutnick Chumash