PARASHAT MISHPATIM

By Rav David Silverberg

            A number of passages in the Midrash suggest possible connections between the beginning of Parashat Mishpatim – a presentation of the basic principles of the Torah’s civil law – and the closing verses of Parashat Yitro.  The Midrash Tanchuma (6) and Shemot Rabba (30:2) assert a specific connection between the proper process of adjudication and the final verse of Parashat Yitro: “You shall not ascend by steps to My altar, so that you do not reveal your nakedness upon it.”  The Torah here requires kohanim to ascend to the altar via a ramp, taking modest steps, rather than walking up stairs, which requires taking wide steps and would thus be disrespectful to the altar.  The Midrashim comment that just as the Torah forbids taking large steps up to the altar, similarly, judges must not rush to pass judgment.  The evidence, claims and arguments must all be weighed slowly and carefully, and not hurriedly.

            At first glance, this admonition is intended to prevent against errors and oversights.  The longer the process of judgment takes, the less likely the judges are to overlook important considerations.

However, the association drawn in this context between judgment and the ramp to the altar might point to a different element.  The Torah forbids walking to the altar by stairs out of concern for the altar’s honor – not out of concern that the kohen might slip.  This prohibition relates to the need to respect the service in the Mikdash, rather than avoiding mishaps.  By extension, then, it appears that the requirement of patient, deliberate judgment involves more than the concern for error – it shows honor and respect for the judicial process.  Rushing through a given activity not only raises the chances of mistakes, but also displays a lack of regard for its importance.  The Torah affords great significance to the judicial system, to resolving disputes in strict accordance with its laws.  In fact, Chazal famously comment that the Shekhina is present when judges preside over cases according to Halakha.  Therefore, the judges are bidden to show respect to their holy mission by tending to it with patience and due diligence, rather than reaching their decisions hastily.

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            The opening section of Parashat Mishpatim deals with the institution of eved ivri – the indentured servant.  The eved ivri is, essentially, a full-time employee of his “master.”  Though the master officially “purchases” the servant, he does not truly “own” the servant in the sense of slave ownership that was common in the ancient world.  The servant works only for six years, and can “buy” his freedom if he receives the necessary funds even before the end of the six-year term.

            Among the more surprising laws that apply to the eved ivri is the master’s right to have the servant marry a shifcha Kena’anit – his non-Jewish maidservant.  If the master wishes, he can force the eved ivri to marry and beget children from the maidservant, and the children from this union become servants of the master.

            The servant’s marriage to a shifcha Kena’anit constitutes an extraordinary provision established by the Torah.  Normally, marriage to a non-Jewish maidservant – who does not attain the full-fledged status of a Jewess until after her release from servitude – is forbidden.  Why did the Torah enact this special provision allowing an eved ivri to marry a maidservant?

The Keli Yakar suggested that this law was necessary to make the purchase of an

eved ivri a financially viable and “cost effective” option.  The institution of eved ivri was intended to help a debtor who cannot repay his loan, or a thief who cannot repay what he owes the victim.  The Torah therefore wanted to ensure that potential buyers would have interest in purchasing an eved ivri, which would allow the servant to repay the money he owes.  A problem, however, arises in a situation of a prospective eved ivri who is married.  As Rashi (21:3) cites from the Gemara (Kiddushin 22a), the owner of such a servant is required to feed the servant’s wife and children.  Many prospective buyers might therefore be discouraged from purchasing such an eved, which would incur such a considerable expense.  To “attract” buyers, the Torah allowed the master to have the servant marry his shifcha and beget children who become servants to the master.  This added “perk” makes the arrangement more viable for the master, thus enabling even married debtors to find work as an eved ivri.

            As the Keli Yakar notes, this theory works on the assumption that an eved ivri may marry the owner’s gentile maidservant only if he is already married to a Jewish woman.  This is indeed the implication of the Gemara in Masekhet Kiddushin (20a).  It should be noted, however, that some Rishonim, including the Ritva, interpret the Gemara to mean only that the owner cannot force the servant to marry a shifcha Kena’anit if he is single.  If the eved ivri agrees to marry the maidservant, then he may, regardless of whether he is already married to a Jewish woman.  According to this view, we cannot apply the Keli Yakar’s theory to explain why the Torah allowed for such a marriage.

            Rav David Kviat, in his Sukat David, suggested that in truth, even the Ritva could accept the general approach taken by the Keli Yakar.  Even if the servant is single, the arrangement is still a costly one for the master, who is required to feed the servant respectably, as a full-fledged member of the household.  The Torah therefore found it necessary to add the provision allowing the eved ivri to marry the maidservant, in order to generate interest in the purchase of the eved ivri.

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            Among the laws discussed in the Parashat Mishpatim is the institution of nezikin – liability for damages that one causes to his fellow’s body or property.  The Gemara in Masekhet Bava Kama (26b) famously establishes the rule that a person bears liability regardless of whether or not he had intended to cause damage.  Even if one damaged somebody else’s property inadvertently, he must compensate for the damages caused.

            The Rama, in his glosses to the Shulchan Arukh (O.C. 695:2), cites a surprising exception to this rule from the Terumat Ha-deshen, one which bears relevance to the season which we will soon be entering.  He writes, “Some say that if one damages his fellow as a result of Purim festivity, he is exempt from compensation payment.”  If the levity and lightheartedness of the Purim celebration results in some kind of damage, the Terumat Ha-deshen maintains, the person responsible for the damage is not required to compensate the victim.

            The obvious question arises, why should Purim-related damages be any different from ordinary cases of damage?  If Halakha demands compensation even for accidental damage, why does it make an exception on Purim?

            Rav Chayim Mordechai Katz (cited in Eitz Ha-da’at, Parashat Mishpatim) suggested explaining the Rama’s ruling based on a famous discussion among the Acharonim regarding the nature of damage payments.  Many scholars addressed the question of what in particular triggers the obligation to pay for damage: the ma’aseh nezek (the “act of damage”), or choser shemira (the failure to take proper precautions).  According to the first approach, the Torah simply imposed a payment obligation upon anybody who commits an “act of damage,” who does something that harms his fellow or his fellow’s property.  The act itself, intrinsically, creates liability.  The second approach, by contrast, focuses not on the act itself, but on the individual’s guilt.  All people are required to conduct themselves in a manner that does not endanger the health, lives or property of other people.  A person who causes damage – even unwittingly – is responsible to pay because he failed to take precautions necessary to avoid causing harm.  According to this approach, it is guilt, rather than the act in question, that creates liability.

            Rav Katz suggested a distinction in this regard between intentional and unintentional acts of damage.  A person who intentionally damages is obligated to pay by virtue of the act itself; by committing such an act, he automatically incurs liability.  When it comes to inadvertently caused damage, however, the act itself cannot create liability, since it was not done intentionally.  However, the Torah does hold the individual responsible for not having taken necessary precautions.  For example, if a ballplayer accidentally shatters a window by an errant throw, the act of throwing cannot create liability, but he is held accountable for not exercising greater caution.  A person who throws a ball in the vicinity of other people’s property bears an obligation to throw carefully, and it is his failure to do so that renders him liable to repair the window, even though he did not break it intentionally.

            On this basis, Rav Katz suggest, we can perhaps understand the Rama’s ruling regarding damages caused as a result of the Purim celebration.  The unique nature of the Purim festivity lowers the standard of precautions that Halakha demands of a person.  While we would certainly not allow a complete disregard for other people’s well-being or possessions, the bar is lowered to some extent out of consideration for the special spirit of Purim.  This lowering of standards, according to the Rama, affects liability for inadvertent damage.  Since less caution is expected, we cannot hold a person responsible for damages caused accidentally.  For this reason, Rav Katz explains, the Magen Avraham and other authorities (see Mishna Berura 695:14) claim that even this view would hold a person liable for intentional acts of damage.  As we saw, when it comes to intentional damage, the act itself creates liability, and therefore in all situations the perpetrator would be required to pay.

            We might also add that even regarding unintentional damage, there would be instances when the Rama would hold the individual liable.  After all, as we noted, it is inconceivable that Halakha would absolve a person altogether of the need to exercise caution around other people and their property on Purim.  Even if the bar is lowered, some level of personal responsibility undoubtedly remains, and we might therefore assume that the Rama would hold a person liable on Purim even in certain situations of accidental damage.  This assumption might underlie the view of the Bach, cited by the Mishna Berura (695:13), that a person must compensate his fellow for significant damage (“hezek gadol”) caused during the Purim celebration.  The Bach apparently held that even if Halakha absolves a person from the need to exercise caution, this extends only so far.  We might not hold a person responsible for ensuring not to spill his wine and stain his fellow’s clothing, but we would certainly require a person not to drive while intoxicated, which can cause much more serious damage.  Therefore, if significant damage is caused as a result of the Purim celebration, then the guilty party is indeed “guilty” and must therefore pay compensation.

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            Toward the end of Parashat Mishpatim, we read that God summoned Moshe to the top of Mount Sinai, where he would learn the laws and commands that he must convey to Benei Yisrael.  God tells Moshe, “Ascend the mountain to me, and stay there…” (24:12).

            Why did God add in this instruction the words, “ve-hyei sham” (“and stay there”)?

            Rashi, commenting to this phrase, writes simply, “Forty days.”  On one level, it seems that God informs Moshe that unlike his previous ascents to the mountaintop, which lasted very briefly, this time he must remain there for an extended period in order to study the Torah.

            Still, one might wonder why this point was worthy of emphasis.  Additionally, even if it was necessary to inform Moshe that he would be on the mountain for forty days, why didn’t God say so directly, instead of ambiguously stating, “and remain there”?

            Rav Dov Weinberger, in his Shemen Ha-tov (vol. 3), suggests that Rashi actually alludes to a novel, homiletic reading of the words, “ve-hyei sham,” which literally means, “and be there.”  While on the peshat (literal) level of interpretation God here refers to Moshe’s prolonged stay on the mountain, on the deeper level of derush this phrase may mean, “and come into being there.”  God alludes to Moshe that after this experience of studying the Torah directly from the Almighty, Moshe will transform into a different person.  This transformation is reflected by the “shine” that radiated from Moshe’s face after he descended from the mountain (Shemot 34:29).  The experience of an angelic existence atop Mount Sinai in direct communion with the Almighty had a transformative effect on Moshe, and God therefore summoned Moshe by telling him, “ve-hyei sham” – as if to say, “assume a new existence while you are there.”

            This, the Shemen Ha-tov suggests, explains the emphasis on the forty-day period.  The Sages speak of forty days as the time needed for an embryo to take shape and form its existence after fertilization.  The halakhic implication of this concept is that within forty days of fertilization, one may pray that the fetus be a male or female, as this has yet to be established; after that point, one can no longer pray for the gender, as a person may not pray for the reversal of nature.  The period of forty days is thus symbolic of the formation of a human being.  Hence, when Rashi explains “ve-hyei sham” as referring to “forty days,” he perhaps alludes to the transformative quality of Moshe’s stay atop Mount Sinai.  He, like a newly-fertilized human egg, would spend forty days forming a new identity and essentially becoming a new being.

            Accordingly, the forty-day period which Moshe spent receiving the Torah establishes a model of “transformative” Torah study.  Although other people obviously are not able to study under the same set of circumstances as Moshe did during those forty days, we are nevertheless to ensure that, on some level, our learning has an impact upon our being that transcends the mental absorption of the material.  We, too, are to approach Torah learning as an opportunity to forge our spiritual identity, to be transformed and elevated to something greater than what we were before we began studying.  The command of “ve-hyei sham” may thus be directed toward all of us – calling upon us to constantly work to change and improve ourselves through our encounter with Torah.

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            The Torah in Parashat Mishpatim establishes the laws of shomerim, people who have been entrusted with an article belonging to another person.  As the Mishna famously outlines in Masekhet Bava Metzia (93a), Torah law distinguishes between four different categories of shomerim, and assigns to each a different level of liability for loss or damage.  The strictest standard is imposed upon the sho’eil, or borrower, who receives the right to use the item without pay.  As he enjoys the greatest level of benefit from the item, he bears liability even if the object is lost or damages due to circumstances entirely beyond his control.

            The Gemara in Masekhet Bava Metzia (96b) points to an important exception to this rule, a situation where the sho’eil would, indeed, bear liability for damages incurred, namely, meita machamat melakha – “it died as a result of work.”  The standard case where this halakha applies is that of a farmer who borrowed an ox for plowing, and the ox dies over the course of its labor.  In such a case, the borrower is not required to compensate the animal’s owner, because, as the Gemara comments, “lav le-okma be-khilta she’ilta” – meaning, the borrower can tell the owner, “I did not borrow it to keep it inside.”  Since he obviously borrowed the animal for farm work, he cannot be held responsible for what happens to the animal during standard work.

            The Rishonim raise the question of why the situation of meita machamat melakha differs from other situations of oness – when the animal dies due to circumstances beyond the borrower’s control.  The Ramban formulates the question as follows: “If when it dies ‘on its own’ [meaning, not because of labor] he is liable, even though it is the Angel of Death that killed it, what difference is there between that case and this case?”  Meaning, once the Torah holds the borrower responsible even for events for which he cannot be blamed, why should it matter that the animal perished as a result of normal labor?  The fact that he obviously borrowed the animal for this purpose is immaterial once the Torah holds him liable even for circumstances beyond his control.

            The Ramban therefore explains the Gemara to mean that the borrower is exempt in this case because the owner is to blame for the animal’s death.  The argument of, “I did not borrow it to keep it inside” means that the owner had to be aware that the animal would be used for plowing.  And if the animal was not in condition to perform this work, then this is entirely the fault of the owner, who subjected his ox to work for which it was not physically fit.

            The Rashba offers a different explanation, claiming that an animal that dies during labor is no different in this respect from an animal that loses strength as a result of labor.  The owner obviously accepts the fact that when the ox is returned, it will have less strength remaining that it had before it was lent.  This understanding is inherent to the borrowing agreement, and obviously the Torah does not require the borrower to pay the lender for the several hours’ worth of labor that he diminished from the ox’s capabilities.  Therefore, if the ox had only one hour of labor left, and this hour was completed while working for the borrower, at which point the ox collapsed and died, the borrower is not held liable.  The basic agreement between the owner and lender accepts the fact that some of the ox’s strength will be diminished, and we thus do not make the borrower pay if it was the ox’s final supply of strength that was diminished in his property.

            The Rashba’s theory could perhaps be more clearly understood if we think in terms of somebody who borrows a pen, and it runs out of ink as he writes with it.  Halakha obviously does not require one who borrows a pen to pay the lender for the ink he uses; his free rights to the ink are integral to the legal institution of borrowing.  Thus, if the ink he uses happens to be the very lost drops in the pen, we have no reason to make him pay, since the rightful use of the article’s resources is inherent in the borrowing agreement.

            These different approaches taken by the Ramban and Rashba will likely yield different conclusions in a situation where the lender is not to blame for the fate of the lent item, even though it was lost or damaged as a result of normal, anticipated use.  Rav Meir Goldwicht (in Yeshiva University’s Beit Yitzchak, vol. 24) notes that such a case is discussed by the Shakh in his commentary to Choshen Mishpat (340:6).  The Shakh addresses the situation of one who borrows weapons with which to wage war, and the weapons are seized by the enemy.  The Terumat Ha-deshen classified this case as one of meita machamat melakha, since the borrowed articles were lost as a result of their normal use.  Just as a borrower is not liable for an ox that dies during labor, one is similarly not held responsible for borrowed weaponry that is seized during an ill-fated battle.  The Shakh, however, disagrees, noting that the weapons were not lost due to their inherent deficiency.  The weapons’ seizure occurred due to the failure of the military effort, not to any kind of flaw in the weapons.  As such, the Shakh contends, the owner cannot be accused of lending an item unsuited for the intended task, and the borrower (assuming he returns safely from the battlefield…) bears liability.

            Rav Goldwicht noted that this issue very likely hinges on the debate between the Ramban and Rashba.  The Shakh quite obviously presumes the Ramban’s argument, attributing the provision of meita machamat melakha to the fact that the owner is at fault.  Therefore, this law does not apply to the case of the lost weaponry, the fate of which clearly cannot be blamed on the owner.  The Terumat Ha-deshen, however, presumably followed the Rashba’s approach, that the borrower is exempt because the object’s natural depreciation during normal use is accepted by the lender as part of the borrowing agreement.  Hence, since the weaponry was lost as a natural consequence of warfare, the obvious purpose for which it was lent, the borrower does not bear liability.

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            Yesterday, we discussed the special level of liability that the Torah imposes upon a sho’el – a borrower – for the loss or damage of the borrowed item.  A sho’el bears liability for even damages that occur due to circumstances beyond his control, with the exception of the case of meita machamat melakha – if the item breaks as a result of normal use, such as when a borrowed ox dies while plowing.  Yesterday we discussed two possible reasons for this exception.

            A third approach is proposed by the Machaneh Efrayim (Hilkhot She’eila U-fikadon, 4).  If an animal dies over the course of normal labor, then we may determine in retrospect that it was not capable of performing the desired task for which it was, quite obviously, borrowed.  The Machaneh Efrayim thus contends that a situation of meita machamat melakha must be viewed as a mekach ta’ut – a “mistaken transaction.”  Just as a sale is automatically voided if the merchandise is discovered to be dysfunctional, similarly, a borrowing agreement is invalidated if the borrowed item was incapable of serving the desired purpose.  Since the lender made this agreement on the assumption that the animal may be used for plowing, once this is determined not to be the case, the agreement becomes retroactively voided – along with the borrower’s acceptance of responsibility.  We do not hold the borrower responsible in this case because we do not consider him a borrower, since the basic assumption upon which he entered into this agreement was determined incorrect.

            According to this approach, the provision of meita machamat melakha applies only if the damage or loss occurred as a result of an inherent flaw in the item, which would retroactively invalidate the initial agreement.  If, however, the object was damaged during normal use but due to external factors, the sho’el would bear liability.  One such example would be the case discussed yesterday, of a borrowed weapon that is seized by enemy forces during warfare.  According to the Machaneh Efrayim, the borrower would certainly be obligated to compensate the lender, since the borrower cannot be said to have made a “mistaken transaction” when he borrowed the weapon.  As the weapon itself was in perfect working order, and was lost due to a failed military effort, we have no reason to retroactively void the borrowing agreement.

            The Machaneh Efrayim’s contention would also affect situations where the damage that occurred does not render the item unusable.  If the object was damaged during normal use but remained functional, then the sho’el would bear liability for the damage.  Since he could still use the item for its desired purpose despite the damage, we cannot retroactively cancel his agreement with the lender.  Indeed, the Machaneh Efrayim applies his theory to a case where somebody borrowed a book and the pages were somehow ruined as a result of his reading.  The Machaneh Efrayim rules that the borrower must compensate the owner, in light of his theory to explain the rule of meita machamat melakha.  Though he does not fully explain this ruling, it appears that the book in question remained readable despite the damage caused.  For this reason, the borrower would have certainly borrowed the book even had he known that this damage would result, and therefore the initial agreement is intact and he bears liability for the damages.

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            In our previous editions of S.A.L.T., we discussed the laws presented in Parashat Mishpatim concerning a sho’eil, or borrower, one who receives permission to use his fellow’s item without pay.  As opposed to other cases where a person is entrusted with his fellow’s possession, the sho’eil bears liability even in situations of oness – where the item was damaged or lost due to circumstances entirely beyond his control.  In our last two editions, we discussed the important exception of meita machamat melakha – a case where the borrowed item breaks (or, in the case a borrowed animal, dies) over the course of its normal use.

            Today, we turn our attention to another exception to the sho’eil’s liability – one that actually applies to all shomerim (“guardians,” or people entrusted with somebody else’s object).  The Torah writes in the context of a sho’eil, “im be’alav imo lo yeshaleim” – “if its owner is with him, he shall not pay” (22:14).  According to the plain reading of the text, it would seem, a shomer is absolved of liability if the accident happens in the presence of the object’s owner.  The rationale for such a law would likely be that the owner shares a degree of blame for the fate of the object, as he was present at the time of the incident.  It is only when be’alav ein imo – the shomer watches or uses the object independently, having already left the owner’s presence – that he bears responsibility for whatever might happen to the object.

            Chazal, however, explain this verse much differently (Masekhet Bava Metzia 94a-b).  According to the halakhic reading, the exemption of be’alav imo refers to a case where the object’s owner was “borrowed” or “rented” along with the animal or object.  Meaning, if a person hires his friend to work for him, and the agreement included the rental of the friend’s ox, then the renter is not liable for the loss or death of the animal.  Likewise, if somebody borrows his fellow’s ox and the fellow comes along to help, the borrower is absolved of liability, since he “borrowed” the ox’s owner along with the ox.  According to the halakhic reading, then, it makes no difference whether or not the accident happened in the owner’s presence.  If the owner is somehow in service of the borrower at the same time as the animal or article, the borrower (or other shomer) does not bear liability.

            Rav Shimshon Refael Hirsch, in his Torah commentary, describes this law as “perhaps the most difficult of all the laws of Jewish Civil Law to comprehend.”  He notes as well that “hardly anywhere else can we find such a great contrast between the wording of the text and the interpretation which the Halakha actually gives to it.”  The plain reading of the text, that the borrower is absolved of liability when the accident occurs in the owner’s presence, seems so straightforward and simple, while the halakhic reading seems, at first glance, so peculiar and difficult to understand.  Why should it matter that the owner is in the service of the borrower?  How does this impact upon the shomer’s liability?

            Rav Hirsch begins his answer by demonstrating why Chazal could not accept the plain meaning of the text.  For one thing, he notes, the moment the shomer assumes responsibility for the object, he should bear liability even if the owner happens to be present.  Even if the owner was with the object and could have prevented the mishap, this should not affect the liability of the shomer, who accepted responsibility over the object.  As Rav Hirsch writes:

…if one has given any of one’s property into another’s charge, by that very act, one is relieving oneself from the duty of looking after it, and the full responsibility for looking after it lies entirely with the custodian, and one cannot think of any possible legal grounds why this duty should be any less if the owner happens to be present.

But moreover, the Torah introduces the be’alav imo exemption in the specific context of a borrowed animal that dies or breaks a limb (22:13) – mishaps that could not have been prevented by the owner or by anyone else.  The Torah speaks here of damage that occurred due to circumstances beyond the shomer’s control, and also beyond the control of anybody else standing in the animal’s vicinity.  There seems little – or no – reason, then, to absolve the shomer of accountability simply because the owner was present at the time of the accident.

            For these reasons, Rav Hirsch speculates, Chazal rejected the plain meaning of the text, and established the halakhic definition of be’alav imo.

            What, then, is logic behind the halakhic reading, that the shomer is not held liable if the owner was in his service?

            Rav Hirsch suggested that this halakha is a natural outgrowth of the basic assumption that an employer does not bear liability for physical harm caused to the employee.  A hired worker, like all people, is required to take safety precautions, and thus bears personal responsibility for harm he suffers during work.  Accordingly, when a person hires or “borrows” another person and that person’s object, the borrowed or rented object is seen as an extension of its owner, such that the shomer bears no liability toward it.  In Rav Hirsch’s words:

Now the Torah seems to assume that if anybody has placed himself at the disposal of another, and then hands him over some object, he implicitly imposes no greater responsibility for the object than is borne towards himself.  If a man engages another to work for him, and the workman, while in his service, suffers injury to his person, the former is not legally bound to pay compensation.  So that if he takes into his care anything from his workman, he implicitly undertakes no greater responsibility for the object.

Be’alav imo thus means that an object borrowed together with the owner is not treated with any greater stringency than the owner himself.  Just as the owner continues to bear responsibility for his person while in somebody else’s service, he likewise bears responsibility for his property which he brings with him into that person’s service.