S.A.L.T. – PARASHAT MISHPATIM

By Rav David Silverberg

MOTZAEI

            The Torah writes in Parashat Mishpatim that in a case where a person accidentally kills another, “I shall make for you a place where he shall flee” (21:13).  This verse refers to the institution of arei miklat, the “cities of refuge” which were designated as places where inadvertent killers receive protection from vengeful relatives of the victims.  The Torah elaborates on this topic later, both in Sefer Bamidbar (chapter 35) and in Sefer Devarim (chapter 19).  The Mekhilta comments that the halakha of arei miklat was mentioned here, in Parashat Mishpatim, to establish that it applied even during the period of Benei Yisrael’s journeys in the wilderness.  Whereas later the Torah speaks of arei miklat as the law applied in Eretz Yisrael, here it refers to a place that was designated as an area of refuge during the period Benei Yisrael spent in the wilderness, before they reached the Land of Israel.

            The Mekhilta further notes that the law of arei miklat that applied in the wilderness resembled the institution that was implemented later in Eretz Yisrael.  Namely, just as in the Land of Israel it was specifically the cities of the Leviyim that served as cities of refuge, similarly, the Levite camp was designated as the area of refuge in the wilderness.

            Curiously, the Mekhilta in this context employs the plural form – “machanot Leviyim” (“the Levite camps”).  It speaks not simply of “the Levite camp,” but rather of multiple “camps” designated for the Leviyim in the wilderness that served as a place of refuge.  Seemingly, there was only a single Levite camp in the wilderness, and the Mekhilta’s use of the plural form in this context thus requires explanation.

            Rav Binyamin Sorotzkin, in his Nachalat Binyamin (Telzstone, 5759), suggests that the Mekhilta refers here to the periods of travel, when the Leviyim divided into two groups.  As we read in Parashat Beha’alotekha (Bamidbar, chapter 10), when Benei Yisrael traveled, the Leviyim traveled in two separate groups.  The families of Gershon and Merari, who were responsible for transporting the Mishkan, traveled ahead, whereas the Kehat family, who transported the Ark and other sacred articles, traveled further behind.  When the Leviyim from Gershon and Merari would arrive at the site of the nation’s encampment, they would assemble the Mishkan so that it would be ready by the time the Kehatites arrived with the sacred articles.  Thus, while during the periods of encampment all the Leviyim lived together in a single camp, during travel they split into two different groups.

            Accordingly, Rav Sorotzkin suggests, when the Mekhilta speaks of the “Levite camps” as serving as places of refuge, it refers to the two separate groups of Leviyim that formed during the periods of travel.  Both were designated as areas of refuge for those who inadvertently killed.

            Rav Sorotzkin adds a possible explanation for why the Mekhilta found it necessary to emphasize that the status of arei miklat was shared by both groups of Leviyim during travel.  The Brisker Rav inferred from a passage in Rashi’s commentary to Masekhet Zevachim (60b) that the area of the Gershonites and Merarites did not have the formal halakhic status of sanctity during travel.  Normally, certain groups of temei’im (people with ritual impurity) were barred from entering the Levite camp.  Rashi implies that during travel, these temei’im were barred only from the area of the Kehatites, who transported the Ark and other sacred articles, but not from the area of Gershon and Merari.  Accordingly, one might have assumed that the area of Gershon and Merari also did not function as a place of refuge during travel, just as it was not endowed with halakhic sanctity with respect to the restrictions on temei’im.  The Mekhilta therefore emphasizes that both “Levite camps” were equally valid areas of refuge during Benei Yisrael’s travels, despite the fact that they did not share the same status of halakhic sanctity.

SUNDAY

            The Torah in Parashat Mishpatim (22:21) introduces the prohibition of “lo te’anun,” which, according to the plain reading of the text, forbids causing distress to widows and orphans.  The Mekhilta, however, clarifies that this prohibition in truth applies to all people, and forbids causing any person distress through insulting or otherwise hurtful speech.  The Torah mentions specifically widows and orphans only because they are often especially vulnerable to emotional pain, but it is forbidden according to Torah law to cause emotional harm to any person.

            A story related by the Gemara in Masekhet Shabbat (55a) appears to expand the parameters of this prohibition beyond the limited definition of speaking hurtful words.  The Gemara tells that once as the sage Shemuel was teaching, a woman came and began crying about her troubles.  Shemuel ignored the woman, and continued the lesson.  Rav Yehuda, his student, questioned his teacher’s decision to ignore the woman’s pleas.  Shemuel responded that it is not he, but rather Mar Ukva, the head the rabbinical court at the time, who will bear accountability for this woman’s distress.  As the leading rabbinic official, it was his responsibility – not Shemuel’s – to take up the woman’s cause and offer assistance in her time of need.

            Tosefot in Masekhet Bava Batra (10b) record a tradition conveyed by the Ge’onim that Shemuel was punished in the afterlife for his indifference to the woman who approached him.  After his passing, Tosefot write, Shemuel sat before Rav Yehuda as his student.  Rav Yehuda, who protested the way Shemuel handled the situation, was given prominence while Shemuel sat as his disciple.

            Apparently, the Torah forbids not only causing people distress, but also ignoring people’s distress.  Shemuel was indeed correct that Mar Ukva ultimately bore the responsibility to address the destitute woman’s situation.  However, this did not entitle him – Shemuel – to ignore her cries.  Even those who are not in a position to give assistance are capable of, and required to, give empathy and show concern.  Shemuel’s failure to do so rendered him deserving of punishment.  Even if it was Mar Ukva’s job to try and provide the woman with a logistical solution for her problems, it was Shemuel’s job to, at very least, lend a listening ear and offer much-needed empathy and emotional support.

(Based on an article by Rav Yissachar Frand at www.torah.org/learning/ravfrand/5766/mishpatim.html#)

MONDAY

            The Torah in Parashat Mishpatim (22:3,6) establishes the law of keifel, which requires a thief to repay twice the value of the goods he stole.  This fine is mentioned only in reference to cases of geneiva – theft, where objects are stolen stealthily, without the owner’s knowledge.  The case of gezeila – frontal robbery – is addressed later, in Parashat Vayikra (5:23), where the Torah requires a gazlan (robber) to return only the stolen goods themselves, with no additional penalty (unless he had falsely sworn innocence, in which case he must add a 20% fine and bring a sacrifice).

            In explaining this difference in the punishments of a ganav and a gazlan, the Gemara (Bava Kama 89b), citing Rabban Yochanan ben Zakai, writes that the ganav is treated more severely because “hishva kevo eved li-khvod kono” – “He equated the honor of the servant with the honor of his Master.”  The gazlan, who stole openly, disregarded the watching eyes of both God and people.  While he undoubtedly committed a heinous crime, he made no attempt to hide his criminal behavior.  This cannot be said of the ganav, who thought he could hide from God just as he could hide from people.  According to Rabban Yochanan, the fine imposed upon the ganav is to punish him for the religious offense he committed, in addition to the civil crime.  He not only seized somebody else’s property, but also acted as though God does not see him.  The fact that he concealed his crime from people indicates that he did not want it seen; by extension, it indicates his denial of God’s ability to see the criminal act.  For this denial the ganav must pay an additional fine to atone for his offense.

            Rav Shimshon Raphael Hirsch, in his Torah commentary, suggests a different explanation for the distinction drawn between a ganav and a gazlan:

Robbery is taking property away from its possessor by force; theft, taking it away stealthily.  The robber seizes an object which is under the personal guardianship of its owner.  The thief finds the object left under the guardianship of the public respect for honesty and law.  So that robbery is a simple crime against the individual whose rights of possession have been violated.  Theft is a double crime, a crime against the individual rights of possession, and a crime against the general idea of respect for right of property, under the protection of which the owner had left his property.  This idea forms the basic principle on which the whole of civilized communal life rests.  Without the presumption that the general public has respect for rights of property, no man could leave any movable property out of his sight for one moment.  The thief accordingly has to pay the value of the theft, as restitution to the owner; and then again an equal sum for his contempt of the principle of general honesty against which he has offended.  As a member of the general public, the object had been placed under his protection, and instead of justifying the trust, he had betrayed it.

            According to Rav Hirsch, the fine is imposed to punish the thief for his betrayal against society, as opposed to his violation of the rights of the owner, which he corrects by returning the principal sum.  A functioning society must allow people to leave possessions out of their sight; nobody except the most indignant paupers can keep all their possessions on their person at all times.  The ganav, who fiendishly seizes property that is out of the owner’s sight, has violated this basic trust that all members of society owe to one another.  He must therefore make two separate restitution payments – one to compensate for the violation of the owner’s personal property rights, and another to atone for his betrayal of the trust that society as a whole had placed in him.

TUESDAY

            The Torah in Parashat Mishpatim (21:37) establishes the law commonly known as “dalet ve-hei,” which requires a thief to pay extra compensation for stolen sheep or cattle.  If a thief steals a sheep and then proceeds to either sell or slaughter the animal, he must pay the victim four sheep; if he had stolen an ox, he must pay five bulls as compensation.

            The Mekhilta cites Rabbi Meir as offering the following observation concerning this halakha: “Come and see how beloved work is before the One who said that the world shall exist!  For an ox, which performs work – one pays five; for a sheep, which does not perform work, one pays four.”  According to Rabbi Meir, the unique stringency imposed upon the thief who steals an ox stems from the critical role served by oxen in cultivating the earth.  Stealing an ox diminishes from the owner’s potential to produce, and is thus seen as a more grievous crime than stealing a sheep.  For this reason, the Torah levies a more severe penalty on the thief who stole and then killed or sold an ox, than it did upon the one who steals a sheep.

            Rav Yehuda Leib Ginsburg, in his Yalkut Yehuda, finds it significant that Rabbi Meir refers here to God as “the One who said that the world shall exist.”  Of all the terms used to refer to the Almighty, Rabbi Meir chooses specifically an expression that emphasizes God’s having created the world.  The reason, Rav Ginsburg suggests, is that creation is precisely the theme of Rabbi Meir’s remark.  God created the earth and assigned human beings the task of sustaining and developing it.  Rabbi Meir extols the value of melakha (work) because it perpetuates the divine act of creation.  The thief who steals another person’s “equipment,” thus diminishing from his capacity to develop the earth, is therefore guilty of thwarting the process of creation.  The “One who said that the world shall exist” looks very harshly upon those who work against the world’s existence, by standing in the way of those seeking to do their part to sustain creation.  The most severe penalty for theft is thus reserved for the thief who steals an ox and impairs his fellow’s ability to cultivate the earth and sustain its inhabitants.

WEDNESDAY

            Much of Parashat Mishpatim is devoted to the Torah’s system of civil law, including the area of nezikin (torts), liability for damages.  The first Mishna of Masekhet Bava Kama lists the four different categories of nezikin, but it names them with difficult and ambiguous terms.  This ambiguity gave rise to a debate between the two primary first-generation Amora’im, Rav and Shemuel, in identifying the four principal categories.  As the Gemara discusses (3b), Rav and Shemuel debate the question of whether this list includes only nizkei mamon – damages caused by one’s property, such as by his animals – or if it includes also nizkei adam – damages caused by the individual himself.  According to Rav, the Mishna combines in this list both types of property damages: damages that one causes personally, and damages that are caused by things in his possession.  Shemuel, on the other hand, understood the Mishna as listing only the different kinds of nizkei mamon, and making no mention at all of damages caused by the individual’s actions.

            It is likely that this debate reflects the fundamental question regarding the relationship between nizkei adam and nizkei mamon.  If the Mishna incorporates both categories in a single listing, then, presumably, it views the liabilities in both cases as fundamentally similar to one another.  However, if the Mishna presents as the “four main categories of torts” only damages caused by one’s property, then we should perhaps conclude that the liability in cases of adam ha-mazik differs in nature from that of nizkei mamon.

            In what way would these two types of nezikin differ from one another?

            Rav Chayim of Brisk (among others) claimed that adam ha-mazik differs from nizkei mamon in that the liability in cases of adam ha-mazik is rooted in the act itself.  When a person performs an action that results in damage, he bears liability on account of the action he performed.  When, however, his animal or his fire causes damage, his liability stems from his failure to protect against such damages.  If a person’s animal eats somebody else’s food, for example, the animal’s owner bears liability not because of the act performed by the animal, but rather because of his failure to restrain the animal.  It is not the act which gives rise to the obligation to pay restitution, but rather the guilt incurred by the animal’s owner.

            One ramification of this question relates to the possibility of holding minors liable for damages they caused.  Rashi, in his commentary to Masekhet Bava Kama (98b), describes a case of a child who caused damage by destroying a person’s legal documents, and he writes that the child must pay for the damages upon reaching adulthood.  Rav Chayim noted that this ruling cannot even be entertained if we view the liability of adam ha-mazik as based upon any sort of guilt.  Minors are excluded from all punitive measures, and one therefore cannot bear responsibility for wrongful conduct he committed as a minor.  Rashi’s position becomes possible only if we view the law of adam ha-mazik as an obligation triggered by the action, irrespective of any guilt.  From this perspective, it becomes possible that such an action can give rise to liability even when performed by a minor.

            Interestingly, the Hagahot Oshri (Bava Kama 8:9) extends Rashi’s ruling to cases of chavala – liabilities incurred through bodily harm caused to one’s fellow.  According to the Hagahot Oshri, a child who causes a person bodily harm must make restitution payments upon reaching adulthood – just as Rashi requires a child who caused property damage to make restitution when he becomes an adult.  Rav Chayim, however, distinguished between the cases of adam ha-mazik and chavala.  He contended that the payments required to compensate for bodily harm are punitive in nature, and the Torah does not impose punitive measures for acts committed during childhood.  Only in a case of adam ha-mazik, where the liability arises automatically from the act of damage, and not on account of guilt, would Rashi require a person to make restitution for damages caused as a minor.

            Finally, this question will impact upon a situation of a person who caused damage be-oness – due to circumstances beyond his control.  The Rambam (as understood by the Maggid Mishneh, Hilkhot Chovel 6:4) held that a person bears liability even in such a case (except in extraordinary cases of “oness gamur”).  This is, indeed, the plain reading of the Gemara in Masekhet Bava Kama (26b – “al ha-oness ke-ratzon”).  Tosefot (Bava Kama 27b), however, famously exempt a person from liability caused due to circumstances beyond his control; he must pay for damages only if he bears some degree of guilt for what happened.  Presumably, Tosefot attributed the liability of adam ha-mazik to the individual’s failure to take proper precautions to avoid damaging other people’s property – similar to the liability of nizkei mamon.  The Rambam, however, quite likely distinguished between the two kinds of nezikin, and held that a person who causes damage bears liability by virtue of the act itself, irrespective of any guilt on his part.

(Based on a shiur by Rav Yosef Dov Soloveitchik, as recorded by Rav Herschel Reichman in Beit Yitzchak, vol. 28)

THURSDAY

            The Torah in Parashat Mishpatim establishes the famous law of “ayin tachat ayin” (21:24), which literally means, “an eye for eye,” indicating that removing somebody’s eye is punishable by having one’s own eye removed.  The Gemara, however, in Masekhet Bava Kama (84), concludes (at least according to the accepted view) that this verse is not to be taken literally.  Rather, the Torah here establishes that a person who causes his fellow bodily harm must pay restitution in the amount equal to the victim’s “loss of value” as a result of the injury.  This amount is determined by calculating the theoretical loss of the victim’s value on the slave market.  The victim’s current value is subtracted from his value prior to the incident, and the result of this equation is the amount that the guilty party must compensate the victim.

            Immediately after establishing this law, the Torah proceeds to address the case of a person who beats his gentile servant.  If the beating causes the loss of a tooth, eye, or limb (such a toe, finger or ear), then the servant must immediately be released (21:26-27 and Rashi).

            Netziv observes that the Torah imposes a more severe penalty upon a person who causes his gentile servant to lose a limb than one who causes this kind of injury to his fellow Jew.  Ordinarily, causing bodily harm renders one liable to pay only the representative monetary loss that resulted from the injury.  In the case of a gentile servant, however, the loss of a limb terminates the servant’s otherwise permanent state of servitude.  The master loses the service he would have received until the servant’s death, which is, of course, an enormous value that far exceeds the amount paid for a similar injury caused to another Jew.

            Netziv explains that the standard case of severe physical injury involves a fight between two parties.  Indeed, the Torah introduces the law of “eye for an eye” in the context of a case of two people embroiled in a physical fight (“Ve-khi yinatzu anashim” – 21:22).  While there is no justification for causing one’s fellow physical harm, the Torah understands the natural tendency of people to become enraged during a violent confrontation.  The Torah certainly could not absolve a person who causes his fellow harm during an altercation, but it does impose a reasonable and moderate sum as compensation.  In the case of a servant, however, beatings generally result not from a fit of rage or flaring temper, but rather from a perspective of objectification.  Masters who beat their servants likely do so because they view the servants as no different from the animals and inanimate objects in their possession.  Just as one whips a horse to make it gallop, the master feels entitled to beat his slave to ensure strict obedience and quality service.  The Torah therefore imposes an especially harsh fine upon a master who views another human being in this way.  If owning a servant causes a person to deny his servant’s humanity and relegate him to the status of animals, then he forfeits the right to own a servant.  This unique fine underscores the Torah’s recognition of the innate value, worth and stature of every human being, and its demand that we all afford other people the basic dignity and respect they deserve.

FRIDAY

            Among the laws discussed in Parashat Mishpatim is the liability of an ox’s owner for the damage it causes.  The Torah here addresses two different situations of a goring ox: an ox that kills a person, and an ox that kills another ox.  An ox that fatally gores a human being is put to death, and if it had previously gored to death three times, then the animal’s owner is fined, as well (21:28-30).  The Gemara in Masekhet Bava Kama (41a) addresses the question of how the latter case is possible; since a single fatality warrants the ox’s execution, an ox can seemingly never reach the point of repeated offenses.  The Gemara presents several possible scenarios, including a situation where the ox fatally gored three times, but in each instance it “escaped” before it could be executed.

            Regarding an ox that kills another ox, too, the Torah distinguishes between a shor tam (an ox that gores for the first, second or third time) and a shor mu’ad (an ox that gores for a fourth time).  In the case of a shor tam, the owner is liable to compensate the plaintiff for only half the damage incurred (though the precise means by which the compensation is paid is subject to debate; see Rashi to 21:35).  If, however, the ox had previously gored oxen on three occasions, the owner bears full liability for damages caused by the fourth offense, because he should have exercised greater caution in guarding his animal (21:36).

            Rav Shimon Moshe Diskin, in his Mas’at Ha-melekh, insightfully notes a subtle distinction in the Torah’s formulation when describing the different situations of shor mu’ad.  With regard to an ox that had fatally gored a person on three previous occasions, the Torah writes, “But if it was a goring ox previously …” (21:29).  The Torah speaks simply of a case where an ox had repeatedly gored to death on several occasions prior to the current incident.  But in the context of an ox that gored another ox, the Torah writes, “But if it is known that it is a goring ox …”  Here, the Torah emphasizes that the ox’s violent nature became an established fact.  In this context, the critical point is not simply that the ox has a previous history of goring, but, more specifically, that this previous history has determined that the ox is violent by nature, that this fact is “known.”

            On the basis of this distinction, Rav Diskin suggested that the definition of the status of shor mu’ad may differ in the two contexts.  With regard to an ox that gores other oxen, as we saw, the shor mu’ad is determined to have a violent nature.  However, in the case of an ox that fatally gores people, it obtains the status of mu’ad as a gezeirat ha-katuv, a formal provision that does not necessarily reflect any definitive conclusions regarding the ox’s nature.  As opposed to the ox that gores other oxen, the ox that gores people is classified as a mu’ad even though it is not necessarily “known” that it has a violent temperament.  The designation of an ox that gored people as a shor mu’ad is the result simply of its having gored three people – not of its presumed nature.  An ox that gores other oxen, by contrast, assumes the status of mu’ad because of its presumed violent nature, as it has become “known” that it has a tendency to assault other oxen.

            The halakhic implications of this distinction, as Rav Diskin infers from the Rambam’s codification of these laws (Hilkhot Nizkei Mamon, chapter 10), involve the different requirements for obtaining the mu’ad status in these cases.  In the case of an ox that gores other oxen, the ox becomes a mu’ad by goring on three occasions, regardless of the outcome of the attacks.  It makes no difference whether the attacks resulted in the oxen’s death or injury; the three acts of violence establish a violent nature irrespective of the consequences of each attack.  When it comes to an ox that gores people, by contrast, the Rambam emphasizes that it becomes a mu’ad only after three fatal attacks (“mu’ad la-hariga”).  No matter how violently the ox assaulted people, only the assaults that result in fatality count toward the three required incidents of goring.  Clearly, if the mu’ad process is intended to confirm the ox’s violent nature, the result of the attacks would be of no consequence.  The repeated acts of goring should themselves constitute evidence of the ox’s nature and reflect is tendency to attack people.  Evidently, the process of becoming a mu’ad in the case of an ox that gores people operates as a gezeirat ha-katuv, a formality which the Torah established that does not necessarily follow intuitive or self-evident reasoning.  The ox becomes a mu’ad after three incidents of fatal goring, having nothing to do with our conclusions regarding its nature and temperament.

David Silverberg