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PARASHAT MISHPATIM

By Rav David Silverberg

            In the beginning of Parashat Mishpatim the Torah presents the laws relevant to the eved ivri, the indentured Hebrew servant, who must be released after a six-year term of service.  If the servant chooses to remain under his master, then the master performs the retzi'a ritual, whereby he pierces the servant's ear.  After this ritual, the Torah writes, the servant shall "serve him [the master] forever" ("va-avado le-olam" – 21:6).  As Rashi famously cites from Chazal (Mekhilta; Masekhet Kiddushin 21b), this verse must be understood in light of a conflicting verse in Sefer Vayikra (25:40), which establishes that even after retzi'a a servant goes free on the yovel (jubilee year).  Thus, the word le-olam ("forever") in this verse in Parashat Mishpatim cannot be taken literally, as it refers only to the period remaining before the onset of the jubilee.

            An interesting ruling of the Ramban in his chiddushim to Masekhet Gittin (36a) sheds light on why the Torah writes "he shall serve him forever" if in truth the indentured servant works only until the yovel.  The Ramban addresses the case of an eved ivri who underwent retzi'a shortly before the Temple's destruction, when the laws of eved ivri still applied, but the Temple was destroyed before the onset of the next jubilee.  Since the laws of yovel apply only in the times of the Mikdash, the obligation to release servants does not take effect after the Temple's destruction.  Therefore, this eved ivri, who had already undergone retzi'a, is not set free on the jubilee year; he rather remains in his master's service forever.  Apparently, the Ramban understood that the phrase "va-avado le-olam" should, indeed, be taken literally, as extending the eved ivri's term of service indefinitely.  In principle, retzi'a places the servant under his master's service for the rest of his life; as it happens, however, the laws of yovel require masters to release their servants on the jubilee.  Hence, even though in virtually all cases the servant will go free on the yovel, if the jubilee laws are suspended the indentured servant will remain in his master's service forever (in the literal sense).

            It should be noted, however, that in his Torah commentary the Ramban advances a different approach in explaining the meaning of the term le-olam in the context of eved ivri.  He writes, "for one who works until the jubilee has worked all the days of the world."  Rav Chayim Chavel, in his annotation to the Ramban's commentary, cites two possible readings of these comments from the Rikanti, both based upon Kabbalistic notions related to the number fifty.  In any event, this interpretation clearly assumes that the word le-olam should not be understood to mean "forever," and refers instead to the period remaining until the yovel.  As opposed to the theory he advances in his Talmud commentary, where he claimed that essentially the servant works forever, and it is the separate system of jubilee laws that allows him to go free on the yovel, here he indicates that from the outset his term of service extends only until the yovel.  It thus appears that the Ramban understood this verse on two distinct levels – on the level of halakhic exegesis, and on the level of Kabbalistic thought.

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            In Parashat Mishpatim we find the following pair of verses: "You shall not allow a witch to live.  Whoever lies with an animal shall be put to death" (22:17-18).  Significantly, these two laws not only appear in juxtaposition to one another, but also comprise an independent paragraph according to the Masoretic arrangement of the text in the Torah scroll.

            Rav Shimshon Refael Hirsch explains that these two crimes represent two categories of capital sins, the respective themes of which are reflected by the different expressions used in the Torah in assigning the death penalty.  Regarding the sorceress, the Torah addresses itself to the nation, to society: "You shall not allow a witch to live" ("Mekhasheifa lo techayeh").  In reference to bestiality, by contrast, the Torah employs the more familiar syntax, "mot yumat" – "[he] shall be put to death."  The crime of sorcery, Rav Hirsch contends, would likely not incur such a severe punishment if not for "the pernicious effect" of this offense on society.  Intrinsically, witchcraft would be looked upon, in Rav Hirsch's words, as "a folly to be smiled at, or a madness to be pitied," rather than a capital offense.  The gravity of witchcraft lies not in the intrinsic repugnance of the given acts, but rather in the fact that it misleads people away from constructive and meaningful engagement.  The claims and practice of sorcery lure people into believing that they can earn success by circumventing the conventional means of effort and compliance with God's laws; it entices otherwise innocent and well-meaning citizens through claims of quick, effortless prosperity and joy.  Moreover, it allows people to lead immoral lives while thinking they can avoid the repercussions through magical forces.  Therefore, the Torah issues the death penalty for witchcraft by addressing the nation: "You shall not allow a witch to live."  It is society who bears the responsibility of protecting itself from the stagnating and corrupting effects of sorcery by ridding itself of its practitioners.

            The crime of bestiality, Rav Hirsch explains, represents the very opposite category of capital offense.  Committed in the privacy of one's home, it has no demoralizing effect on society; it does not directly contribute to the nation's moral deterioration or pose the risk of luring significant numbers away from ethical and productive lifestyles.  It does, however, as Rav Hirsch describes, "touch the vilest depths of degradation."  Regarding this type of crime, the Torah demands "mot yumat," the violator himself is deserving of capital punishment.  Here the Torah addresses not society, which will not necessarily be affected by this crime, but rather the sinner himself.

            Thus, this pair of verses establishes two prototypes of sinful conduct: conduct that intrinsically may not be of such great severity, but yields terribly damaging effects on one's surroundings, and, conversely, acts that have no direct impact upon the violator's surroundings, but are, in and of themselves, religiously repulsive.

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            We find in Parashat Mishpatim a number of laws regarding the ethical conduct required of lenders: "If you lend money to My people, to the poor man among you, do not act towards him as a creditor; do not impose interest upon him" (22:24).  The Torah here demands of a creditor not to impose pressure upon a poor borrower who has difficulty repaying, and not to charge interest.

            The opening clause of this verse is perhaps very revealing about the nature of these laws: "If you lend money to My people, to the poor man among you…"  The Almighty emphasizes that the poor of Benei Yisrael, more so than all other members, are "My people," His nation.  Although all of Benei Yisrael are, of course, considered members of God's special nation, He affords particular status to the poor.  The idea reflected here is expressed more clearly in the famous verse in Sefer Yeshayahu (57:15), "I dwell on high, in holiness, yet [I reside] with the despondent and lowly of spirit, to revive the spirit of the lowly, and to revive the heart of the despondent."  The Almighty "dwells," as it were, among the "lowly of spirit," the disadvantaged members of society.  A similar verse in Sefer Tehillim (34:19) declares, "The Lord is close to the brokenhearted, and He brings salvation to the despondent of spirit."

            The verse here in Parashat Mishpatim demands that we treat the downtrodden and despondent members of the community as "My people," members of the Almighty's innermost circle.  Whereas our instinct is to look upon the poorest citizens as the least important and valuable members of society, the Torah admonishes that we do just the opposite, to relate to them with honor and distinction.  Therefore, "do not act towards him as a creditor; do not impose interest upon him."  If a famous, influential figure would ask a person for a favor, he would celebrate this opportunity, viewing it as an honor to do a favor for a person of such stature.  It is with this same attitude that we are to deal kindly with those genuinely in need, with those who rely upon our favors.  We must recognize that they are the ones closest to the Almighty, and it is therefore a distinct honor and privilege to lend them money, to extend hospitality, to offer a kind and supportive word, to these most distinguished individuals.

            A similar notion arises from the preceding verses: "Do not torment any widow or orphan.  If you do torment him, then when he will cry out to me, I will assuredly hear his cry.  I will become incensed, and I will kill you by the sword, such that your wives will be widows, and your children orphans" (22:22-23).  God here speaks in unusually harsh terms about the grave retribution He will visit upon those who abuse a widow or orphan.  Widows and orphans are generally the most vulnerable members of society, having no husband or father to defend them.  God therefore declares that He will fill this role.  If a widow or orphan is mistreated, God will respond as one would when a member of his own family is abused, with anger and vengeance.  Once again, God declares that the closest members of His "family," as it were, are the poor, the underprivileged, and the most vulnerable among the nation.

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            Parashat Mishpatim presents the mitzva often referred to as perika, literally, "unloading," which obligates one to assist his fellow – even his foe or archrival – in unloading cargo from his animal.  The verse states (23:5), "If you see your foe's donkey lying under his load, and you would refrain from assisting him – you shall abandon [what is in your heart and assist] him" (see Targum Onkelos and Rashi).

            A similar obligation is introduced in Sefer Devarim (22:4), concerning the precise opposite situation: "Do not look upon your fellow's donkey or ox falling along the road as you ignore them; [rather,] raise [the cargo] with him."  Here the Torah demands assisting one's fellow who encounters difficulty loading his cargo on his animal, an obligation generally referred to as te'ina ("loading").

            The Shulchan Arukh (C.M. 272:10) addresses the situation of somebody who simultaneously confronts both situations, of perika and te'ina, where one person experiences difficulty loading his animal, while another struggling to unload.  Who should be assisted first?  The Shulchan Arukh rules that in such a case one should first assist the person unloading his animal, due to the factor of tza'ar ba'alei chayim – the animal's discomfort.  The concern for alleviating the pain of the animal bearing the load tips the scales, so-to-speak, in favor of the person trying to unload his cargo, and he therefore is given precedence over the person trying to load his animal for transport.

            However, the Shulchan Aruckh then codifies a remarkable exception to this rule, based upon a passage in Masekhet Bava Metzia (32b).  Namely, if a person comes upon his foe struggling to load his animal, and at the same time encounters his friend trying to unload his animal, he should – counterintuitively enough – first assist his enemy in loading his animal.  Despite the general preference afforded to perika over te'ina given the importance of alleviating the animal's discomfort, here this concern gives way to the overriding factor of la-khof et yitzro – "to subdue one's evil inclination."  Halakha recognizes the importance of training oneself to overcome his instinctive dislike and resentment towards certain people, and therefore urges a person to assist his foe in a case of te'ina before helping his dear friend remove his animal's burden.  This "self-conditioning" is of such importance that it overrides the factor of tza'ar ba'alei chayim.

            Even more remarkable, perhaps, is Tosefot's discussion of this halakha, in Masekhet Pesachim (113b).  The Gemara there determines that when the Torah speaks of helping one's "enemy" unloading his animal, it refers specifically to a case where he had, on some earlier occasion, seen the animal's owner willfully commit a Torah violation.  The Torah forbids hating one's fellow Jew; undoubtedly, then, the Torah speaks here of somebody who knowingly betrayed the Torah and thus rightfully earns the dislike of devout mitzva observers.  It is specifically such a case, the Gemara concludes, to which the Torah refers in presenting this obligation to assist one's foe loading his cargo.  Tosefot raise the question of why Halakha affords importance to "subduing one's evil inclination" – to overcoming one's hatred towards the individual – if we deal with somebody whom the Torah permits disliking.  As discussed above, the Torah not only encourages one to assist this enemy, but even affords this assistance greater priority than the factor of tza'ar ba'alei chayim.  Why is it so important to "subdue" one's dislike for this individual, if this dislike is sanctioned by the Torah?

            Tosefot explain, very simply, that hatred is, by nature, a self-intensifying process.  Hatred towards a person invariably (or almost invariably) fuels his hatred back towards oneself, which in turn intensifies the original feelings of resentment.  Even when Halakha permits disliking somebody, it urges one to suppress those feelings, given that they are likely to grow and develop into an impassioned and irrational hatred, which the Torah does not allow towards anybody.  Therefore, when one comes upon a willful Torah violator in need of assistance in loading his animal, he should rush to his side and lend assistance, even if at the same time his dear friend needs help unloading his animal.  This is how much importance the Torah afforded to the suppressing of one's feelings of resentment towards any Jew – including intentional sinners.

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            Parashat Mishpatim begins with a general introduction to the laws presented in this parasha: "Ve-eileh ha-mishpatim" – "And these are the laws…"  Rashi, citing from the Mekhilta, comments that the prefix ve – "and" – appears at the beginning of this verse for the purpose of underscoring the equation between the laws of this parasha and the previous section – the Revelation and the Ten Commandments.  In the words of the Mekhilta, this prefix indicates that "just as the earlier ones [were given] from Sinai, so were the later ones [given] from Sinai."  The Torah seeks to emphasize that just as God declared the Ten Commandments from atop Mount Sinai, so did He convey to Moshe the laws of Parashat Mishpatim atop Mount Sinai.

            To explain this comment of the Mekhilta, the Or Ha-chayim draws an association between this passage, which the Mekhilta records in the name of Rabbi Yishmael, and a statement by Rabbi Yishmael recorded in the Talmud, in Masekhet Zevachim (115b).  There Rabbi Yishmael is said to have maintained that only the kelalot (with a khaf, not a kof), the generalities of the Torah's commandments, were taught to Moshe atop Mount Sinai.  The details were conveyed to him later, in the Mishkan.  This is in contrast to the view of Rabbi Akiva, as the Gemara there cites, which maintained that even the halakhic details of all the commandments were transmitted to Moshe already at Mount Sinai, and then repeated to him in the Mishkan.  The Or Ha-chayim claims that Rabbi Yishmael drew a distinction in this regard between the laws presented in Parashat Mishpatim and all other commandments of the Torah.  Whereas generally the details of the mitzvot were not conveyed to Moshe until the Mishkan's construction, the details of the laws in this parasha were taught already atop Mount Sinai.  The Mekhilta thus cites Rabbi Yishmael's remark that "just as the earlier ones [were given] from Sinai, so were the later ones [given] from Sinai."  Meaning, the laws of Parashat Mishpatim were presented to Moshe in detail atop Mount Sinai just as the Ten Commandments were spoken from Mount Sinai.  The other mitzvot, by contrast, were conveyed to him only in their generalities, until after the Mishkan's construction when God taught Moshe their intricate details.  (Malbim explains similarly.)

            As the Or Ha-chayim observes, his interpretation of Rabbi Yishmael's comment in the Mekhilta, whereby it refers to Rabbi Yishmael's remark in Masekhet Zevachim, results in a clear contradiction between two passages in Rashi's Torah commentary.  Here in Parashat Mishpatim, as mentioned, Rashi cites Rabbi Yishmael's comment that the word ve-eileh serves to emphasize that the laws of this parasha were taught to Moshe from atop Mount Sinai.  In the beginning of Parashat Behar, however, Rashi famously cites from Torat Kohanim that both the generalities and the details of the mitzvot were conveyed to Moshe atop Mount Sinai.  In other words, Rashi there in Parashat Behar follows Rabbi Akiva's position, that already while atop the mountain Moshe received the details of all the mitzvot – this despite the fact that here Rashi cites Rabbi Yishmael's comment that the laws of Parashat Mishpatim were taught from atop the mountain.  Evidently, Rashi understood that Rabbi Yishmael's comment concerning Parashat Mishpatim does not relate at all to his position that the details of most mitzvot were conveyed only later, in the Mishkan.

            Rav Eliyahu Mizrachi, as the Or Ha-chayim cites, advances a much different interpretation of this comment of the Mekhilta, whereby it can indeed be reconciled with Rabbi Akiva's position in Masekhet Zevachim.  According to Rav Eliyahu Mizrachi's reading, the Mekhilta states that the laws of Parashat Mishpatim, like the Ten Commandments, were transmitted from God amidst the great fire and trembling that characterized the declaration of the Ten Commandments.  Rabbi Yishmael here does not address at all the question of whether the details were conveyed to Moshe from atop the mountain or from the Mishkan.  He simply establishes that the transmission of the laws of Parashat Mishpatim was accompanied by the same extraordinary manifestation of divine revelation as the Ten Commandments.  This is in contrast to the other laws of the Torah, which God conveyed "privately" to Moshe, without the spectacle of the fire and trembling, either from atop Mount Sinai or the Mishkan, depending on the debate recorded in Masekhet Zevachim.

            The Or Ha-chayim strongly rejects this reading of the Mekhilta, writing that he prefers to leave his question on Rashi unanswered rather than accept Rav Eliyahu Mizrachi's interpretation.

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            Among the legal issues discussed in Parashat Mishpatim is the case of a person who smites his fellow, causing him a debilitating injury (21:18-19).  The Torah establishes that if the victim recovers and does not die from the injury, then the assailant pays damage restitution but is not liable to capital punishment: "If he [the victim] rises [from his state of incapacity] and walks about outdoors on his staff, then the assailant is exempt [from capital punishment]."  Once the victim recovers, the assailant can no longer be responsible for murder, even if the victim dies soon thereafter.

            There is some disagreement among the Rishonim as to what kind of "recovery" is necessary before we can no longer attribute the victim's death to the blow he suffered.  Rashi, based on Targum Onkelos and the Mekhilta, explains that the word mish'anto – "his staff" – in this verse is to be read figuratively.  The verse does not refer here to mobility that depends upon the use of a cane or crutches; rather, it speaks of the point at which the victim has fully regained his normal strength and mobility.  The term al mish'anto ("on his staff"), according to Rashi, means "on his full strength," thus referring to the point of complete recovery.  It emerges from this view that if the victim was capable of walking only with the support of a device such as cane, and then dies, the assailant would be held liable for murder.  This is the view taken as well by the Rambam, in Hilkhot Rotzei'ach (4:3-4).

            The Ramban, however, disagrees, and accepts the literal reading of the word mish'anto, as a reference to a cane.  In his view, once the victim is capable of even limited mobility, his subsequent death can no longer be attributed to the blow dealt by the assailant, and he is therefore not liable for murder.

            As mentioned earlier, the Mekhilta and Targum Onkelos quite clearly follow Rashi's view; however, as noted by several later writers, the Ramban's position is likewise rooted in earlier sources.  Most explicitly, the Targum Yonatan Ben Uziel translates mish'anto as mornitei, or "his rod."  Furthermore, the Yad Rama (Sanhedrin 78b) claims that this very question is subject to a debate among the Tanna'im.  The Mishna in Masekhet Sanhedrin (78a) records two views concerning a case where the victim began his recovery and then his condition worsened and deteriorated, to the point where he died.  According to the majority view, the assailant is held liable for murder, whereas Rabbi Nechemya maintains that his short-lived improvement suffices to dissociate the victim's eventual death from the assault.  The Yad Rama explains that Rabbi Nechemya accepted the literal reading of our verse, whereby it refers to a limited recovery.  He thus understood that even if the victim only began showing signs of improvement, but never achieved full recovery, his death can no longer be blamed on the assailant.  If so, then the Ramban in his commentary follows Rabbi Nechemya's view.

            The Revid Ha-zahav (cited in Rav Menachem Kasher's Torah Sheleima, chapter 21, note 355) suggested another Talmudic source for the Ramban's position, from a ruling in Masekhet Gittin (73a) concerning the law of a shekhiv mei-ra – a dying patient who announces the distribution of his property.  Generally speaking, a sekhiv mei-ra's declaration is legally binding despite the absence of a document; the wishes expressed by a person on his deathbed concerning the distribution of his estate are given legal authority and must be honored.  However, if the shekhiv mei-rai recovers from his illness, then his declaration is null and void.  The Gemara in Gittin clarifies that even if the shekhiv mei-ra ""walked on his staff," his declarations lose their legal authority, seemingly suggesting that even partial recovery constitutes the halakhic end of illness.  Similarly, a person who recovers even partially from a beating should be considered no longer ailing with respect to sentencing the perpetrator to capital punishment if the victim subsequently dies.

            Of course, we may easily distinguish between the two cases of a beating victim and a shekhiv mei-ra.  The authority of a shekhiv mei-ra's declarations on his deathbed was granted as a special dispensation allowing a person in his dying moments to determine the distribution of his assets.  That this authority is void if the shekhiv mei-ra's condition improves – even if it falls far short of complete recovery – does not necessarily reflect a general attitude in Halakha towards partial recovery.  Rather, this is perhaps due to the inherent limits on the extraordinary provision of shekhiv mei-ra, and it would thus have no bearing on our discussion concerning the partial recovery of a beating victim.

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            The final section of Parashat Mishpatim tells of the ceremony conducted at Mount Sinai signifying the formal covenant between God and Benei Yisrael.  We read that as part of this event, Moshe "sent the young men of Benei Yisrael" to bring special sacrifices (24:5).

            The Gemara in Masekhet Megila (9a) records the famous story of the Septuagint, the Greek translation of the Torah commissioned by King Ptolemy.  He assigned this task to seventy Jewish scholars, whom he placed in separate chambers to prevent any cooperation between them in translating the Bible.  Miraculously, the Gemara tells, the seventy scholars all made the same modifications in translating the text in order to avoid confusion and misunderstanding.  As the Gemara records, the aforementioned verse from Parashat Mishpatim was among the verses modified in the translation.  The Jewish scholars suspected that the king would ridicule Moshe for assigning this lofty role – of offering sacrifices to mark the nation's covenant with the Almighty – to na'arei Benei Yisrael, the "young men" of Israel.  They therefore rendered the word na'arei as zatuti, a term that denotes distinction and honor.

            The question remains, of course, as to why in truth Moshe chose the ne'arim, the youngsters, to offer sacrifices.  The Gemara (Zevachim 115a) records a debate as to whether it was the kohanim or the firstborn – who were initially to have served as the nation's kohanim – who offered these sacrifices at Mount Sinai.  Either way, the question arises as to why Moshe selected "young men" for this purpose, or, why the people he selected are referred to as "young men."

            The Midrash Lekach Tov explains that in truth, Moshe designated specifically elder members of the nation for this honor.  The word na'arei in this verse refers not to youth, but rather to zeal and alacrity.  According to the Midrash Lekach Tov, the Torah refers to the elders with this term to applaud them for the youthful energy they exhibited in carrying out this holy task.  Rav Menachem Kasher, in his Torah Sheleima, cites other (more obscure) Midrashic sources that explain similarly.

            The Rosh, in his Hadar Zekeinim Torah commentary, explains much differently, claiming that the Hebrew term na'ar is at times used synonymously with the word shali'ach – an agent, or messenger.  The Torah thus employs this term in reference to those selected to offer the sacrifices at Mount Sinai, emphasizing that they did not bring these sacrifices as personal offerings, but rather on behalf of all Benei Yisrael.

            Rav Yaakov Mecklenberg, in his Ha-ketav Ve-ha-kabbala, suggests that the Torah refers to these men as na'arei Benei Yisrael in order to draw a distinction between them and the atzilei Benei Yisrael, the "noblemen" of Israel, whom the Torah mentions several verses later (24:11).  The "atzilim" represented the nation's spiritual elite, and were chosen to approach the mountain and, as the Torah tells, behold the revelation of the divine presence.  The na'arei Benei Yisrael were indeed men of distinction, worthy of the honor of offering the sacrifices, but are nevertheless referred to as "young men" to set them apart from the "atzilim."  Rav Mecklenberg then adds another possible explanation, claiming that the word na'ar at times refers not to youth, but rather to a subordinate stature, the status of servitude.  Yehoshua, for example, is referred to as a na'ar (Shemot 33:11) even as an adult, because he was Moshe's disciple and attendant.  The Torah sought to emphasize that these people who offered the sacrifices at Sinai performed their duties with the sense of "na'ar," understanding their position of servitude with respect to the Almighty – which is, after all, among the primary themes of this covenant.

            Finally, Rav Shimshon Refael Hirsch briefly comments in reference to the phrase na'arei Benei Yisrael, "the young men, the youth, the immediate bearers of the future."  He appears to have understood this term literally, to mean that specifically a group of youngsters from Benei Yisrael was selected to offer these sacrifices, emphasizing the fact that the covenant with the Almighty was made not merely with the current generation, but with all future generations of Am Yisrael, as well, for eternity.