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MOTZAEI
We find in Parashat Mishpatim a pair of verses establishing certain obligations regarding considerate behavior to one's foe (23:4-5). The Torah demands that if a person comes across his nemesis' animal that had strayed from the herd, he must return it despite his ill feelings towards the owner. Secondly, if a person encounters his foe's animal buckling under a heavy load of cargo, he bears an obligation to lend his enemy a hand and assist him in transporting the goods.
These commands of course reflect the Torah's insistence on treating people with loving kindness despite their past history of enmity. Indeed, Targum Onkelos and others interpret the second of these verses to mean, "abandon that which is in your heart." A Jew must learn to overcome natural feelings of vengeance and resentment, and offer assistance even to those whom he may find good reason to dislike. Underlying these verses is the concept articulated by King Shelomo with his characteristic eloquent simplicity, "If your enemy is hungry, feed him bread, and if he is thirsty, provide him with water to drink" ("Im ra'eiv sona'akha ha'akhileihu lachem, ve-im tzamei hashkeihu mayim" – Mishlei 25:21). Spiteful, unkind behavior towards a person does not grant him license to act similarly towards others, even towards the perpetrators themselves. As Professor Nechama Leibowitz writes in her discussion of these verses, "His behavior towards you must not be a yardstick for your behavior towards him."
These commands also convey an additional message, one which the Midrash Tanchuma Yashan illustrates with the following vignette:
Two donkey-drivers were traveling along the road, and they despised one another. The donkey of one of them crouched [under his load]; his fellow saw him and passed by. But as he passed by, he said [to himself], "It is written in the Torah, 'When you see your enemy's donkey…you shall surely assist him." He immediately turned around and loaded [the cargo] with him. [The other] then began thinking to himself, saying, "So-and-so actually likes me, and I never knew!" They entered an inn and ate and drank [together]. What caused them to make peace? It was because one of them looked into the Torah…
According to the Midrash, this mitzva not only requires a person to overcome his feelings of animosity, but also helps him eradicate those feelings. The Torah here teaches that very often, the most effective way for quarreling parties to reconcile their differences and restore peaceful relations is by acting kindly to one another. If either party is prepared to leave the hard feelings in the past and treat the other as he would with his dearest friends, the two stand a reasonable chance of enjoying peaceful, harmonious relations henceforth. Thus, these laws not only require resisting the temptation of vengeance, but also serve as a means of eliminating that temptation by engendering warm feelings of respect and camaraderie among quarreling parties.
SUNDAY
The Torah commands in Parashat Mishpatim, "…and do no kill an innocent or
guiltless person" ("ve-naki ve-tzadik al taharog" – 23:7). The Mekhilta comments that the
Torah here forbids a court from issuing a guilty sentence on the basis of any
evidence other than two witnesses who testify to have seen the act. Thus, for example, if two witnesses see
a man with a weapon pursuing somebody, warn the pursuer of the penalty for
murder, and later see the pursuer holding a bloody dagger and the pursued man
lying dead, the pursuer may not be sentenced on the basis of their
testimony. Since they did not
witness the act of murder itself, the alleged murderer cannot be convicted by
force of their account. This halakha is similarly established by the Gemara in
Masekhet Sanhedrin (37b).
Oddly enough, the Gemara immediately thereafter tells a story that appears to directly contradict this fundamental rule. Rabbi Shimon Ben Shetach once found himself in a deserted area when he came upon a man dying of a wound and another man holding a blood-stained weapon right next to him. As there was nobody else in the vicinity, there could be no question that the man with the dagger committed the crime. Rabbi Shimon said to the man that although he undoubtedly perpetrated the murder, "what can I do…for the Torah said, 'a man shall be executed only on the basis of two witnesses'" (Devarim 19:15). Curiously, Rabbi Shimon appears to attribute the court's inability to prosecute the criminal to the absence of two witnesses, suggesting that had somebody else been present, he and Rabbi Shimon could have testified against the killer and had him executed. Needless to say, this directly conflicts with the rule established earlier in the Gemara, the forbidding courts from convicting a defendant unless the witnesses saw the criminal act itself.
Tosefot (s.v. she-ein dimkha) resolve this difficulty by offering a different reading of the Gemara, in two respects. Tosefot claimed that:
1) Rabbi Shimon was accompanied by another person during this incident;
2) Rabbi Shimon cited the verse as a source for the halakha requiring witnesses to see the criminal act itself.
Meaning, according to Rabbi Shimon, the
verse, "a man shall be executed only on the basis of two witnesses" teaches that
two people must have witnessed the actual crime for a sentence to be
issued. Whereas the Mekhilta derives this rule from the aforementioned
verse in Parashat Mishpatim, Rabbi Shimon extracts this provision from this
verse in Devarim. Rabbi Shimon and
another man were both present at the scene, but they could not prosecute the
killer because they did not witness the act of murder, and it was this point
that Rabbi Shimon conveyed to the murderer. Clearly, however, this interpretation
does not seem to accommodate the straightforward reading of the
Gemara.
Rav Yehuda Leib Ginsburg, in his Yalkut Yehuda, suggests a different reading. Later in the Masekhet Sanhedrin (81b), the Mishna establishes that if the courts can reasonably ascertain that a person committed a murder, but they do not have valid testimony to the crime, they imprison the culprit and subject him to harsh conditions so that he dies (makhnisin oto le-kipa). The Gemara explains that this is done in cases of eidut meyuchedet, meaning, when two people witnessed the crime but from two different locations, such that they do not constitute a formal pair of witnesses (see Masekhet Makot 6b). Rav Ginsburg understands the Gemara to mean that where the evidence is sufficient for other areas of Torah law, but not to warrant capital punishment, the court has recourse to imprisonment even though it cannot execute the criminal. The case of eidut meyuchedet is representative of cases where the witnesses would have been able to testify had the issue related to matters other than capital offenses. In such situations, the court cannot execute the offender but they can send him to jail.
On this basis, Rav Ginsburg suggests, we can perhaps understand Rabbi Shimon's comment to the killer. Had two witnesses been present at the scene, their testimony would not have sufficed to have the culprit executed, but would have been sufficient for the courts to have him imprisoned. The Gemara (Sanhedrin 37b) cites the view of Rabbi Acha that in monetary law, we indeed accept testimony even if the witnesses did not observe the act in question, so long as what they did see almost invariably leads to the conclusion that this act occurred. Hence, the site of a person wielding a blood-stained dagger standing alongside a victim with a fresh wound would be sufficient grounds for the court to imprison the alleged criminal. Rabbi Shimon therefore explained to the man that he was unable to bring this matter to the courts because he saw this incident alone, and a single witness' testimony is insufficient even in areas that do not involve capital crimes.
MONDAY
The haftara for Parashat Mishpatim, which is taken from Sefer Yirmiyahu (chapter 34), records a prophecy transmitted to Yirmiyahu condemning the Judean kingdom for violating the Torah's requirement to release indentured servants. The opening verses of Parashat Mishpatim establish the obligation for masters to release their servants after six years of service, and, as we read in the haftara, King Tzidkiyahu had initially announced the release of all servants in his kingdom, in compliance with this law. Soon thereafter, however, the kingdom violated this agreement and masters forcefully returned their servants and handmaids into service. God instructs Yirmiyahu in this prophecy to strongly condemn this breach, and to warn of the impending conquest of the country by the Babylonian Empire, as punishment for this grave transgression.
Rav Mendel Hirsch, in his commentary to the haftarot, comments that the particular gravity of this sin lay in the manner in which it was committed. Yirmiyahu makes reference here (34:18) to a formal ceremony that the officers and noblemen conducted announcing the emancipation of the servants. The impression given is that this resolution was accompanied by a good deal of fanfare, as the government officials conducted a public spectacle in an effort to portray themselves as kindhearted and sensitive to the plight of the less fortunate citizens. But the gradual, quiet reinstatement of the servants revealed that this dramatic event was a farce, a shameful attempt to win respect and admiration through deceit and false righteousness. Moreover, as Rav Mendel Hirsch notes, this ploy caused considerable angst and aggravation to the servants, who were led to believe that their long-deserved moment of freedom had arrived, only to see those hopes shattered and their freedom once again denied.
We might add another factor that contributed to the gravity of this
crime. As Rav Mendel Hirsch
mentions, these events took place as the Babylonian army battled against
It was for this reason, perhaps, that this violation sealed the fate of the kingdom. Instead of responding to the crisis by increasing their sensitivity to the plight of the underprivileged, and uniting all the citizens in prayer and repentance, they intensified their abuse and mistreatment of the lower classes, in violation of the very basic ethical creed upon which the Nation of God is to conduct itself.
TUESDAY
Parashat Mishpatim begins with the law of eved ivri – the indentured servant – which requires a master to release his servant after six years of service.
Among the questions raised concerning this halakha is whether or not it affects the nature of the initial contract. Meaning, do we look upon the eved ivri as having been contracted from the outset for a six-year term, or, is the eved acquired permanently, and the Torah then imposes an obligation to release the servant after six years?
Some have suggested that the halakha known as gira'on kesef (literally, "monetary deduction") appears
to demonstrate that the eved is from the outset contracted for only a
six-year period. This halakha, which the Mishna establishes in Masekhet
Kiddushin (14b), states that should somebody offer to pay the master the value
of the servant's remaining years, the master must accept the money and release
the servant. The amount of money
paid is determined by viewing the initial acquisition as a six-year
contract. The amount of time that
the eved has already spent with the master is taken
in proportion to a six-year term, and this percentage is then deducted from the
original acquisition price to determine the redemption price. This seemingly indicates that the
eved was initially sold for a six-year term,
such that his redemption value at any given point is determined based on the
percentage of the six-year term he has served until that
point.
The Brisker Rav, however, reached the opposite conclusion based on the Torah's formulation in presenting the halakha known as ha'anaka- the gifts granted to the eved upon being released. The Torah writes (Devarim 15:12-13), "If your Hebrew brother…shall be sold to you, he shall serve you six years, and in the seventh, you shall send him from you without pay. And when you send him from you without pay, you shall not send him empty-handed…" In this context, the Torah clearly speaks of the master "sending" the slave, seemingly suggesting that the term should essentially continue indefinitely, but the master bears the obligation to release the servant. The Gemara (Kiddushin 16b) indeed interprets the term "teshalechenu" ("send him") literally, claiming that if the servant escaped against the master's will, he does not earn ha'anaka. Even though the six-year period has ended, the rights to ha'anaka are not granted unless an act of shilu'ach – "sending" – takes place. This would certainly suggest that the master must release the servant, and not that the contract automatically expires after six years.
Rav Chayim Leib Eizenstein, in his work Peninim Mi-bei Midresha
(Parashat Mishpatim), suggests reconciling these conflicting sources based on a
theory advanced by Rav Aharon Kotler, as recorded in Mishnat Rabbi Aharon
(18). Rav Aharon Kotler contended
that the term of service indeed ends automatically after six years, but the
Torah nevertheless required a master to verbally announce to the servant the
termination of his service. This
declaration has no legal effect, as even if the master remains silent the
contract naturally expires.
Nevertheless, the Torah imposed a requirement on the master to formally
"send" the eved ivri after the six years, to take an active role in
releasing the eved from his obligations. Thus the Rambam comments, "There is a
mitzva to say to him, 'Go' at
the time of his departure, even though he leaves without pay even if he does not
say [this] to him." (Hilkhot Avadim 2:12).
Hence, the term teshalechenu need not contradict the concept of
gira'on kesef with regard to the nature of the eved ivri's release after six years. As indicated by the rule of gira'on kesef, an eved ivri is initially contracted for six years of
service and is thus automatically released at the end of this period. Nevertheless, the Torah imposed an
obligation of teshalechenu, requiring the master to initiate the
release and ceremoniously announce the eved's release after the six years have
ended.
WEDNESDAY
We find in Parashat Mishpatim a reiteration of the command to observe
Shabbat: "Six days shall you perform your activities, and on the seventh day you
shall desist…" (23:12).
Malbim offers an insightful interpretation of this verse by noting a distinction between its formulation and that which is used in the fourth of the Ten Commandments, which also speaks of Shabbat observance: "Six days shall you work…" (20:9). There, in the Ten Commandments, the Torah refers to the six-day workweek with the verb a.v.d. (ta'avod), whereas here, in Parashat Mishpatim, the Torah speak in terms of "performing your activities" – "ta'aseh ma'asekha." The reason for these different terminologies, Malbim suggests, relates to the context of the laws of shemita which the Torah addresses here in Parashat Mishpatim. The previous verse had introduced the prohibition against agricultural activity during the shemita ("sabbatical") year, and the Mekhilta thus comments that the exhortation to observe Shabbat refers specifically to Shabbat during shemita. One might have concluded that since the Torah had already called for a cessation of normal agricultural activity during the seventh year, there is no need to observe a weekly "day of rest" every Shabbat. The Torah therefore inserted in the context of shemita a special reminder that the Shabbat laws obtain even during the restful shemita year.
On this basis, Malbim suggests an explanation for the different verbs used in the two different contexts. In his view, the verb a.v.d. ("work") denotes specifically work that entails physical exertion, and it is thus used in reference to Shabbat observance generally, which marks a cessation from the physical rigors of the demanding workweek. In the context of shemita, however, the verb a.v.d. is inappropriate. During the year of shemita, people in an agrarian society are not involved in "work" in the sense of physical labor, as agricultural activity is forbidden. Therefore, the Torah here speaks of ma'asekha – "your activities" – general activities that people perform, that do not necessarily entail physical exertion. Shabbat is to be observed as a day of rest for not only the body, but for the mind, as well. Hence, even during the year of shemita, when Benei Yisrael in any event desisted from avoda, they were nevertheless enjoined to observe Shabbat by refraining from ma'asekha – other, non-physical pursuits that occupied their time and their minds, and which are forbidden on Shabbat.
THURSDAY
Towards the end of Parashat Mishpatim we read that Moshe read before the people the sefer ha-berit – literally, "the book of covenant" – after which the nation issued the famous declaration, "All the Lord has spoken – we shall do and we shall hear [na'aseh ve-nishma]" (24:7). They expressed their wholehearted acceptance of the laws they had already been taught, as well as those which they will "hear" later. The Sages afforded great significance to this declaration, going so far as to teach that when Benei Yisrael announced na'aseh ve-nishma a host of heavenly angels descended and placed crowns upon their heads.
Numerous writers and darshanim throughout the ages have presented different approaches to explain the unique importance of this celebrated declaration of na'aseh ve-nishma. The Rosh Yeshiva, Rav Yehuda Amital shlit"a (http://vbm-torah.org/archive/sichot/shemot/18-59mishp.doc), suggested that na'aseh ve-nishma relates to the importance of viewing the Torah's commands in their totality, rather than individually. One cannot properly determine the Torah's outlook and perspective by contemplating a single mitzva in isolation; a proper outlook is formed by considering the entire range of the Torah's commands and understanding the interplay between different values and ideals. Rav Amital commented (as recorded by a student):
…the
very laws of the Torah themselves cannot be understood when they are each taken
in isolation – this causes them to be perverted and misunderstood. On one hand, the Torah speaks of mercy:
"God is good to all those who call on Him" (Tehillim 145:9), and at the same
time, "Happy is he who shall seize and dash your [
Accordingly, the Rosh Yeshiva suggested, the importance of na'aseh
ve-nishma lies in the people's
acknowledgement that what they have learned thus far constitutes but a portion
of God's law. They declared that
they have much more to learn before being able to properly understand the
complete message of the Torah, as any mitzva or group of mitzvot evaluated in isolation could leave a person
with an inaccurate or distorted perspective on the ratzon Hashem (divine will). It is only when a person dedicates
himself to the totality of the Torah, and appreciates its complexity and the
wide range of ideals it teaches, that he is capable of rising to the level of
our ancestors at
FRIDAY
Among the topics addressed in Parashat Mishpatim is that of shomerim – liability for the loss of, or damage to, items that one had agreed to guard. The extent of a shomer's liability depends on the kind of arrangement he had made with the object's owner. In most cases (with the exception of a borrower), however, a person entrusted with somebody else's property does not bear responsibility in situations of oness – where the object was lost or damaged due to circumstances beyond his control. Even in such cases, though, the shomer is required to take a formal oath in court that the circumstances indeed qualify as an oness and thus exempt him from liability.
The exception to this rule is when witnesses testify about the incident. The Torah writes, "If it [the animal under one's charge] is preyed upon [by another animal] he shall bring a witness, [and then] he does not pay for the preying" (22:12). The Gemara (Bava Kama 11a) explains this verse to mean that a shomer is exempt from even swearing if he can produce two witnesses who testify that the circumstances surrounding the animal's death were beyond the shomer's control. Even though the Torah employs the singular term eid ("witnesses"), the oral tradition teaches that the Torah actually refers to a pair of witnesses. If only a single witness testifies about the circumstances surrounding the animal's death, then the shomer must take an oath in order to exempt himself from payment.
Some
Rishonim raised the question of how this halakha can be reconciled with the view held by
Rabbenu Tam concerning an eid
ha-mesayei'a – literally, "a
supporting witness." According to
Rabbenu Tam, in any situation where the Torah requires a defendant to take an
oath, he can exempt himself from the oath if he can produce even a single
witness who testifies in his favor.
Although a single witness' testimony is insufficient to award money to a
plaintiff, it does suffice to absolve a defendant of the need to take an
oath. Seemingly, the aforementioned
halakha concerning a shomer's responsibility contradicts this
view. After all, the Gemara clearly
established that two witnesses are required to exempt a shomer from an oath. How, then, can Rabbenu Tam's position be
reconciled with this halakha?
Rav Avraham
This element of suspicion, Rav Sorotzkin
suggests, is absent in the situation of shomerim.
Since the owner was not present at the time the guarded object was lost
or damaged, his claim is, by definition, speculative, rather than
definitive. When he advances his
claim against the shomer, the court has no more reason to accept his
version than the shomer's; he has not aroused any legitimate
grounds of suspicion to require the shomer to take an oath. Necessarily, then, the situation of
shevu'at ha-shomerim is an exceptional case that does not follow
the standard rules and principles of oaths. If the Torah demanded an oath despite
the absence of legitimate grounds of suspicion, we must designate this halakha as extraordinary, such that it is not
necessarily bound by the familiar guidelines of shevu'ot (oaths).
Hence, the halakha in the case of a single witness testifying
in favor of the shomer is fully consistent with Rabbenu Tam's view
concerning eid
ha-mesayei'a. In other cases where an oath is
required, the testimony of a single witness in the defendant's favor suffices to
eliminate the suspicion and thus absolve him of the need to take an oath. However, in the case of shevu'at ha-shomerim, as we saw, an oath is required
irrespective of any grounds for suspicion, and thus the presence of a single
witness will not affect the shomer's status with respect to an oath. It is only the testimony of two
witnesses – which the Torah always treats as verified fact – that exempts the
shomer from the requirement to take an
oath.
This discussion gives rise to the question
of why, in fact, the Torah imposed upon a shomer a requirement to take an oath despite the
absence of any suspicion against him.
The likely answer is that the shomer bears a higher level of accountability by
virtue of his agreement to watch the given item. Whether he leased the object or agreed
to guard it for free or for pay, he took upon himself a certain level of
responsibility for the item.
Therefore, if the item is damaged or lost even due to circumstances
beyond his control, he understandably bears an obligation to at very least
confirm the validity of his claim through a formal oath, in light of the special
degree of accountability that he had accepted.