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Yeshivat Har Etzion

MISHPATIM

            Among the more famous of the many laws outlined in Parashat Mishpatim is that of the goring ox.  In short, an ox that is seen fatally goring a human being is put to death, and under certain circumstances, the owner must pay a monetary fine, as well (21:28-31).  Additionally, if an ox kills another ox, the live ox's owner must compensate the owner of the dead ox (21:35-36).

The Gemara in Masekhet Keritut (24a) addresses a case where an ox is sentenced to execution but before the court has a chance to carry out the sentence, the witness' testimony is invalidated through "hazama." ("Hazama" occurs when two other witnesses testify that the initial witnesses were not present within visible distance of the event to which they testify when it allegedly transpired.  In such a case, the original testimony and court decision is retroactively rendered null and void.)  When this occurs, the Gemara says, whoever seizes the ox first takes legal ownership over the ox.  Apparently, this halakha establishes that the owner de facto loses possession over his ox as a result of its conviction by Beit-Din.  Given that it is condemned to death, this ox is implicitly declared hefker (ownerless) by the owner, and therefore, when the conviction is overturned, the first person to take the ox becomes its legal owner.

            Elsewhere, however, as Rabbi Akiva Eiger pointed out, the Gemara seems to imply otherwise.  In Masekhet Bava Kama (90b), the Gemara discusses a case of an ox that allegedly killed both another ox as well as a human being, and cites a berayta establishing the sequence in which Beit-Din must handle this incident.  The berayta requires the Beit-Din to first hear the case concerning the killing of the other ox, which involves merely payment on the part of the goring ox's owner, and only thereafter open the case of the killed person, which would result in the ox's execution.  (This applies only to a "shor mu'ad"; if a "shor tam" killed both another ox and a person, Beit-Din does not hear the case concerning the dead ox at all; the reason for this distinction lies beyond the scope of our discussion.)  If Beit-Din mistakenly reversed the order, and first heard the case concerning the person, it can no longer try the case with regard to the killed ox.  The Gemara, commenting on this berayta, struggles to explain this final clause, that the case as it concerns the killed ox cannot be addressed once the Beit-Din hears the case regarding the killed person.  Ultimately, the Gemara concludes that the berayta refers to a very specific situation, where the owner flees after the ox is sentenced to execution for having killed a person.

            In his glosses to this Gemara, Rabbi Akiva Eiger raises – and leaves without resolution – a difficult question on this entire discussion.  Why couldn't the Gemara accept the simple reading of the berayta, namely, that once the Beit-Din sentences the ox to execution it can no longer hear the case as it concerns the killed ox?  After all, as we saw in the Gemara in Keritut, once Beit-Din sentences an ox to execution it becomes hefker.  And the Gemara establishes earlier in Masekhet Bava Kama (13b) that an ox is tried for goring only if it is currently (at the time of trial) under the same ownership as it had been at the time of the goring incident.  In our case, the ox was first sentenced to death and thus left its owner's possession and became hefker.  For good reason, then, Beit-Din's hands are tied with respect to the dead ox.  Why could the Gemara not accept this halakha?

            Rav Zalman Dov Rashgolin, in "Chikrei Lev" (New York, 5707; siman 49), suggests that in truth, as this second Gemara would indicate, an ox does not become hefker after the sentencing.  What occurs at the time of sentencing is not hefker, but rather "yei'ush" – literally, "despair."  Yei'ush is a situation where the owner loses hope of ever reclaiming the given item (or, in this case, animal), and therefore even if the circumstances turn out to be far different than he had assumed, whoever seizes the object first acquires ownership.  According to Rav Rashgolin, we mustn't confuse yei'ush with hefker.  When a person renders his possession hefker, he consciously disavows ownership and the item enters the domain of hefker; it becomes ownerless property.  In a situation of yei'ush, by contrast, the individual has not renounced his ownership; rather, his loss of hope at ever retrieving the object allows for the possibility of its transfer of ownership once somebody else takes hold of it.  This distinction explains why in a situation of yei'ush, as we mentioned, the finder takes possession even if later the original owner learns that the circumstances surrounding the object's whereabouts were far different than he had imagined.  Generally, if a person declares his possession hefker or executes any other transaction (i.e. he sells or gives away the item) as a result of mistaken information, the transaction is retroactively annulled, since it occurred on error.  Yei'ush, however, takes effect even when it results from mistaken assumptions.  A person generally loses hope because he assumes the item to have been destroyed; and yet, if a person finds it entirely intact, he may keep it.  Clearly, then, yei'ush is distinct and separate from hefker.

            Thus, when the Gemara in Keritut allows anybody to take possession of the ox when the Beit-Din overturns its sentence, it does not imply a de facto state of hefker after the sentencing.  After all, if we deal with an implicit declaration of hefker on the owner's part, then once the court overturns the sentence, the hefker turns out to have been declared on error and is thus retroactively invalid.  The owner should therefore retain full ownership over the ox.  Rather, after the sentencing the owner experiences yei'ush – he loses hope of ever enjoying ownership over this ox, and therefore, even if the sentence is revoked, others may take possession of the ox.

            It turns out, then, that the owner retains full ownership even after the sentencing, for, as we have seen, yei'ush does not amount to a renunciation of ownership.  Quite understandably, then, the Gemara in Bava Kama could not understand why, after an ox is sentenced for killing a person, Beit-Din can no longer hear the case concerning its having gored another ox.

*****

            We read in Parashat Shoftim the laws concerning "shomrim" – literally, "watchmen," referring to people entrusted with the property of others (22:6-14).  Halakha distinguishes between three categories of shomrim.  On one end of the spectrum is the shomer chinam – one who watches over property without pay, and thus assumes minimal responsibility over the item.  If the property is damaged or lost, the shomer chinam bears responsibility and must compensate the owner only in an instance of peshi'a – if he was neglectful with regard to the property under his charge.  On the opposite end is the shoel, or borrower, who is responsible to compensate for the damage or loss of the item under virtually all circumstances (with the exception of "meita machamat melakha" – if the animal, for example, dies during normal use).  The middle category consists of the sokher – who uses an item on lease - and a shomer sakhar – who watches over an object for pay.  These two are responsible to pay if the item is stolen or lost, even not as a result of their neglect, so long as this did not occur under circumstances beyond their control.

            In all instances when a shomer is exempt from payment, he must, nevertheless, take an oath.  In the case of a shomer chinam, he must swear that he was not neglectful with regard to the object, whereas in the situation of a sokher or shomer sakhar, he swears that the object was damaged or lost "be-oness" (due to circumstances beyond his control).  The mishna in Masekhet Shevuot (42b; see also Gemara, 43a) establishes an important limitation on this halakha of shevu'at ha-shomrim (the oath taken by a shomer), namely, that it applies only when dealing with "metaltelin" – transportable property.  No oath is taken on "karka" – real property, or on other types of possessions which Halakha generally equates with karka, that is, avadim (servants) and shetarot (deeds or loan contracts).  Thus, whenever a shomer is entrusted with any of these three types of property, and the given property is damaged, lost or seized, no oath is required.  (The Gemara there extracts this halakha from verses in Parashat Mishpatim.)

            An important debate exists, however, as to how far this halakha extends.  According to Tosefot (there in Shevuot), this rule excludes real property, servants and shetarot entirely from the legal framework of shomrim.  Not only is a shomer exempt from taking an oath when dealing with any of these three types of property, he bears no liability at all.  Even if a shomer confesses that he was neglectful in his responsibility towards the given property, he need not pay compensation to the owner.

            The Rambam, however, in a ruling that has become the subject of much discussion in Talmudic circles, disagrees.  He writes that when dealing with peshi'a – neglect, the shomer must pay.  The Rambam bases this ruling on a principle he formulates as, "poshei'a ke-mazik," or "one who is neglectful is like one who causes damage."  Meaning, the Rambam agrees with Tosefot in principle that the laws of shomrim do not apply at all to these three categories of property.  However, in the Rambam's view, committing peshi'a, neglecting property under one's charge, is tantamount to "nezek" – actually causing damage to someone else's property.  Therefore, independent of the laws of shomrim – which, as we said, do not apply in the case of real property and the other types – the neglectful shomer must pay compensation to the owner, just as anyone who damages another's property must compensate the loss.

            Tomorrow we will iy"H discuss the Rambam's position further.

MONDAY

            Yesterday we discussed the laws of "shomrim," which the Torah presents in Parashat Mishpatim.  We saw that depending on the arrangement, a shomer – person entrusted with the property of another - may or may not have liability for the item under his charge.  When a shomer is exempt from compensating the owner for the loss of or damage to the item, he must take an oath that the loss or damage did not occur under circumstances which would render him liable (neglect, for example).  However, Halakha establishes that one never takes an oath concerning three types of possessions: real estate, servants and shetarot (deeds or loan contract).  When dealing with any of these types of property, a shomer does not take a vow.  We saw that according to both Tosefot and the Rambam, a shomer over one of these types of property is generally exempt from liability, as well.  According to the Rambam (Hilkhot Sekhirut 2:3), however, peshia (neglectful conduct) marks an exception to this rule.  The Rambam claims that "poshei'a ke-mazik" – a shomer who is neglectful in watching the item under his charge is akin to a "mazik" – someone who actually causes damage to the property of another.  He is therefore liable regardless of the specific laws of shomrim.  Thus, the fact that the laws of shomrim do not apply to land, servants or shetarot will not excuse him from payment, since his liability stems from the general laws of damages, rather than the specific framework of shomrim.

            The Ra'avad objects to this ruling of the Rambam on the basis of the halakha known as "shemira bi-ba'alim."  This extraordinary provision exempts a shomer from liability if he uses the given item together with its owner (see eighth chapter of Masekhet Bava Metzia and Rashi to 22:13-14).  Now this unique halakha applies even to peshia.  According to the Rambam's theory, however, that peshia constitutes outright damage and renders liability independent of the laws of shomrim, how can a shomer ever be exempt from payment if he is neglectful?  How could the unique law of "peshia bi-ba'alim" excuse from liability someone who causes damage to the property of another?

            Rav Chayim of Brisk suggested the following explanation to defend the Rambam from the Ra'avad's challenge.  In truth, Rav Chayim claimed, even the Rambam agrees that peshia is not precisely the same as standard damages.  After all, if an ordinary person sees an item belonging to another situated in a dangerous place where it could easily be damaged, and he does nothing to protect the item, Halakha obviously does not hold him liable for the damages ultimately incurred.  In the case of a shomer, however, this clearly constitutes peshia.  What, then, did the Rambam mean by this equation between peshia and standard nezikin (damages)?  Rav Chayim explained that when a person is entrusted with the property of another, his responsibility towards that property increases.  Before he accepted the status of shomer, he, and every other person, has a minimal standard of responsibility towards the property, namely, he may not actively cause damage to the property.  Upon assuming the role of shomer, however, the standard rises, and neglecting the item is considered tantamount to damaging it.

            Therefore, although a shomer's liability in a case of peshia stems from the general liability of nezikin, this is so only because his status as shomer raises his "nezikin standard," so-to-speak.  Meaning, the shomer status affects his standard of liability with respect to the laws of nezikin.  Hence, this equation between peshia and nezikin still hinges upon the formal status of shomer; in a situation when Halakha determines that the status of shomer – for whatever reason – does not apply, then we do not equate peshia and nezikin in such a case.  In the situation of "shemira bi-ba'alim," therefore, when Halakha (for reasons that are beyond the scope of our discussion) exempts the shomer from the liabilities generally associated with the laws of shomrim, we do not equate peshia and nezikin.

TUESDAY

            Among the many laws presented in Parashat Mishpatim is the prohibition against speaking falsely: "Mi-dvar sheker tirchak" ("Keep far from falsehood" - 23:7).  The Gemara in Masekhet Ketubot (16b-17a) cites a famous debate between Beit Hillel and Beit Shammai which appears to touch upon the scope and parameters of this prohibition.  The issue they address is "keitzad merakdin lifnei ha-kala" – the appropriate manner in which to praise a bride when fulfilling the mitzva of simchat chatan ve-kala (rejoicing with a bride and groom).  Beit Shammai maintain that one must speak about the bride truthfully and praise her only for what she really is.  Beit Hillel, however, disagree, and claim that regardless of the bride's appearance, one should describe her as a "beautiful and charming bride" ("kala na'a va-chasuda").  Beit Shammai object to Beit Hillel's view on the basis of the prohibition of "mi-dvar sheker tirchak."  How can one call the bride "beautiful and charming" if her appearance is uncomely?  Beit Hillel respond: "According to your view, someone who purchased bad merchandise in the market – should one praise it in his eyes or denigrate it in his eyes?  Surely he should praise it in his eyes!"

            It is unclear, however, how this response addresses the difficulty raised by Beit Shammai.  How do Beit Hillel permit speaking falsely, even in the interest of enhancing the joy of the bride and groom?

            The Rosh Yeshiva, Rav Yehuda Amital shlit"a, discussed this Gemara in a shiur in the yeshiva (which was summarized in the most recent volume of the yeshiva's journal, "Alon Shevut") and developed three different approaches to understanding this debate.  Firstly, the prohibition of "mi-dvar sheker tirchak" might apply specifically to judges.  After all, the verse reads, "Keep far from falsehood; do not bring death on those who are innocent and in the right, for I will not acquit the wrongdoer."  This prohibition appears in the context of judicial laws directed specifically to the nation's magistrates.  Indeed, Ibn Ezra, in his commentary to this verse, explains that the prohibition against speaking falsely presented in this verse applies specifically to judges.  The Rashbam similarly explains, "If it appears to you to be a false trial with false witnesses, but you cannot contradict them, distance yourself from that case and do not adjudicate it at all."  According to the Rashbam, "Keep far from falsehood" means that a judge should refrain from presiding over a case that he senses involves dishonesty.  Likewise, Rav Amital observed that the Rambam, in his code of law, brings the prohibition of "mi-dvar sheker tirchak" only in the context of judicial law (seven times in Hilkhot Sanhedrin, in Hilkhot Eidut 17:6, and in Hilkhot To'ein Ve-nit'an 16:10).  Furthermore, the Rambam does not include a prohibition against speaking falsely in his list of the 613 commandments.  Rav Amital explained that according to the Rambam, this prohibition does not earn the status of an independent mitzva because it is subsumed under the general category of "be-tzedek tishpot amitekha" ("judge your kinsman fairly" – Vayikra 19:15), which the Rambam discusses in Hilkhot Sanhedrin (beginning of chapter 21).

            This easily resolves the difficulty Beit Shammai raise against Beit Hillel's view.  Beit Hillel perhaps maintained that "mi-dvar sheker" applies only to judges, and there is therefore no prohibition against falsely complimenting a bride.  Beit Shammai, by contrast, viewed "mi-dvar sheker" as a general prohibition against speaking falsely.

            A second approach to this debate emerges from the comments of the Sefer Ha-yerei'im regarding the prohibition of "mi-dvar sheker tirchak" (siman 235).  The Yerei'im explicitly writes that this prohibition does not apply in situations where false speech can be of assistance to another.  Interestingly, he, too, bases his view on the context of the prohibition.  But unlike the aforementioned commentators, who derive from the verse's context that the prohibition applies only to judges, the Yerei'im explains that it refers only to lies that will cause harm, such as in the case addressed in this verse.  When, however, speaking falsely will actually help another person, it is permitted.  The Semag (mitzva 107) follows this position, as well, and cites Beit Hillel's ruling in the Gemara as proof.

            Accordingly, the debate between Beit Hillel and Beit Shammai perhaps surrounds this precise point.  Beit Hillel might have restricted the prohibition of speaking falsely to cases when doing so causes harm or damage to another.  Therefore, one may compliment a bride on her appearance even is such compliments are undeserved.  Beit Shammai perhaps felt that the prohibition applies even when no harm will result from the false speech, and they therefore forbade imprecise compliments

            As Rav Amital notes, however, the Yerei'im himself explicitly addresses the debate between Beit Hillel and Beit Shammai and suggests a different explanation.  He claims that even Beit Shammai agree that "mi-dvar sheker tirchak" does not apply to speaking falsely for the benefit of another.  However, they hold that in the case of a bride and groom, exaggerated compliments are not in the couple's best interests.  Rav Amital suggested that in the Yerei'im's view, fostering a false, unrealistic self-image runs the risk of frustration and disappointment in the future.  Beit Shammai therefore felt that one does no favor to the bride or groom by describing the bride as something she is not.  According to this approach, then, Beit Hillel and Beit Shammai do not argue on any halakhic point, but rather disagree in their assessment of this particular situation.

WEDNESDAY

            The Torah in Parashat Mishpatim establishes that one who kindles a fire bears liability for the damage caused by the fire: "When a fire is started and spreads to thorns, so that stacked, standing, or growing grain is consumed, he who started the fire must make restitution" (22:5).

            The Gemara in Masekhet Bava Kama (22a) records and discusses a famous debate between Rabbi Yochanan and Reish Lakish regarding the conceptual basis for this liability.  Rabbi Yochanan claims that "eisho mishum chitzav" – meaning, one is responsible for the damage caused by a fire he kindles just as he bears liability for arrows he discharges.  The action of kindling a fire encompasses as well the subsequent "actions" of the fire; thus, if the fire proceeds to consume the property of another, the one who kindled the flame is considered as having personally – albeit indirectly – destroyed the given property.  Reish Lakish, by contrast, maintains that "eisho mishum mamono," fire liability stems from one's "ownership," so-to-speak, over the fire he created.  (Rashi and Tosefot argue as to whether Reish Lakish refers here to legal ownership, or to a type of de facto responsibility for the fire.)  Just as a person bears liability for damages caused by his animal, so must he make restitution for losses resulting from his fire.

            The Gemara proceeds to analyze this debate and its ramifications.  Ultimately, it concludes (on 23a) that the practical difference between these two positions involves a case where a human being suffers physical injury as a result of fire.  The laws of "chabala" (destruction of a person's limb by another person), outlined earlier in Parashat Mishpatim (21:18, as interpreted by Chazal), include a number of different payments.  The responsible party must pay the objectively determined value of the lost limb ("nezek"), compensation for the pain suffered ("tza'ar"), medical expenses ("ripuy"), lost income ("shevet") and recompense for the humiliation endured ("boshet").  According to Rabbi Yochanan, one whose fire destroys a limb of another must make all these payments as if he directly caused the harm.  Since, as we saw, Rabbi Yochanan views the results of a fire as an extension of the initial kindling, we must consider all damage caused by the fire as having been personally brought about by the one who kindled the flame.  There is no difference, then, between physical harm caused by fire and physical harm caused by direct assault.  Reish Lakish, however, argues.  He views fire not as an extension of the individual's action, but rather as his property.  Just as when one's animal causes harm he must pay only for the actual losses incurred, and need not pay the four sums outlined above, so must one who kindled a flame make restitution for only the actual financial losses.

            Commenting on this Gemara, the Nimukei Yosef, in what has become a very famous passage, questions a practice observed for centuries in countless Jewish homes: lighting Shabbat candles.  After all, Halakha follows Rabbi Yochanan's position, that fire is the extension of the initial act of kindling, and until the fire is extinguished, we attribute everything it does and causes to the person who kindled it.  If so, then it turns out that one who lights a candle is considered as if he lights it constantly, until it burns out.  How, then, can one light a candle before Shabbat for it to burn on Shabbat?  According to Rabbi Yochanan, whose position we accept, the person is considered to be constantly lighting the candle!

            The Nimukei Yosef answers that in truth, Rabbi Yochanan did not mean to say that the person who lit a candle is considered as lighting it constantly, throughout the "lifetime" of the fire.  Rather, we attribute all effects of a fire to the initial act of kindling.  At the moment the individual lit the fire, we consider him as having at that point personally performed what the fire ultimately proceeds to do.  Therefore, for example, the Nimukei Yosef claims that if someone lights a fire and dies before the fire destroys property, his inheritors must pay compensation from the estate.  Since we view the damage as having occurred at the time of kindling, the individual assumed a payment obligation before his death, which is then transferred to his inheritors.  Were the payment obligation to be generated only at the time the damage occurs, then we would consider the damage as having been caused by a dead man, which obviously yields no payment obligation whatsoever.

            Interestingly, however, the Ketzot Ha-choshen (390) notes that this position of the Nimukei Yosef appears to be subject to a dispute among the Rishonim.

            Rav Soloveitchik zt"l (cited by Rav Herschel Shachtar, in "Eretz Ha-tzvi,"pp. 54-55) suggested a simpler answer to the Nimukei Yosef's question.  He claimed that one cannot be in violation of a "melakha" (forbidden activity) on Shabbat without performing an action.  The Torah prohibitions of Shabbat require a concrete action to be violated; there can be no violation of these prohibitions through inaction.  Therefore, even according to Rabbi Yochanan, and even if one would disagree with the Nimukei Yosef's understanding of Rabbi Yochanan, a person does not violate Shabbat by lighting a candle before Shabbat.  Since he performs no concrete action on Shabbat, he does not violate the prohibition against kindling a flame on Shabbat.  (This premise, that "melakha" violation requires concrete action, is based upon Rashi's comment to Masekhet Sanhedrin 66a, s.v. she-chayavin.)

            As Rav Herschel Shachtar notes, however, this principle applies only to the Torah prohibitions of "melakha."  Chazal, in their enactment of additional Shabbat prohibitions, followed much looser guidelines, and thus we indeed find rabbinic prohibitions on Shabbat involving inaction.  Among the more famous of these prohibitions is known as "shehiya" – leaving uncooked food on an open flame before Shabbat to cook on Shabbat.  Although the individual has done no action on Shabbat, he is nevertheless in violation of the rabbinic prohibition.

THURSDAY

            This Shabbat we read for the "maftir" reading the section called "Parashat Shekalim," the first verses of Parashat Ki-Tisa, which discuss the half-shekel tax paid by every member of Benei Yisrael and with which the nation's census was taken.  During the times of the Beit Ha-mikdash, it was on Rosh Chodesh Adar when the people were asked to come forth and bring their half-shekels to the Temple treasury.  We commemorate this annual event by reading Parashat Shekalim each year on the Shabbat immediately preceding Rosh Chodesh Adar.

            The haftara for Shabbat Shekalim is taken from Sefer Melakhim II (12:1-17), and tells of King Yoash's insistent efforts to raise funds for the renovation of the Temple.  We read this account on Shabbat Shekalim because part of Yoash's program was ensuring that the half-shekel tax collected from the people went towards the Temple's renovation (see Rashi to 12:5).

Some background to Yoash's reign will help us understand the importance of this project.  Yoash's grandfather, Yehoram, had married a woman named Atalya – the daughter of Achav, king of the Northern Kingdom of Israel.  Yehoram thereby introduced into the Kingdom of Yehuda the idolatrous culture and practices of the North, a policy that was continued by Yehoram's son and successor, Achazyahu.  But during Achazyahu's reign, the family of Achav was overthrown in the North in a rebellion launched by Yeihu, who vowed to destroy every member of Achav's extended family.  And so Achazyahu, the king in the Southern Kingdom, was also killed in Yeihu's revolt.  Upon Achazyahu's death, his mother, Atalya, embarked on a bizarre, bloody campaign to eradicate the entire royal family – her own children and grandchildren.  One grandchild, Yoash, who was but an infant at the time, was saved by an aunt, who hid him inside the Beit Ha-mikdash for six years.  Throughout this time, Atalya ruled the country.  But when Yoash reached the age of seven, the kohen gadol, Yehoyada, arranged the formal coronation of Yoash and the execution of Atalya.  The seven-year-old King Yoash grew under the care and tutelage of Yehoyada.

            It thus turns out that before this renovation project, the Temple had been subject to neglect for at least twenty years or so (eight years of Yehoram, one year of Achazyahu, and six years of Atalya, besides the first several years of Yoash).  Understandably, then, Yoash afforded great importance to this project and approached it with particular insistence.  When he saw that the necessary repairs had not been made, he summoned Yehoyada and the other kohanim and chastised them: "Why have you not kept the House in repair?" (Melakhim II 12:8).  In response, Yehoyada made a donations box and placed it next to the altar to help ensure that the necessary funds are raised.

            However, the story of Yoash is far from over when our haftara ends, with the successful renovation of the Mikdash.  The verse immediately following the section read for the haftara tells of the attack on the Southern Kingdom by King Chazael of Aram.  Yoash had no choice but to surrender and give to Aram all the gold in the Temple treasuries.  It is among the most tragic ironies of Tanakh that after Yoash's concentrated effort to enhance the Temple, he himself must empty its treasures and reverse the process he had initiated.

            The explanation for why this occurred is provided in Sefer Divrei Hayamim II (chapter 24).  There we are told that after Yehoyada's death, Yoash and his advisors "abandoned the House of the Lord, God of their fathers" and involved themselves in pagan worship.  Yehoyada's son, Zekharya, received prophecy from God and publicly reprimanded the people, but Yoash had him killed.  It is shortly thereafter that Aram's army descends upon the kingdom and forces Yoash to pay a heavy fine.

            How did this happen so quickly?  How could Yoash, who so assertively saw to the renovation and upkeep of the Temple, and committed himself to correcting the wrongs of his predecessors, who, in his words, "had violated the House of God and had even used the sacred things of the House of the Lord for the Baals" (Divrei Hayamim II 24:7), suddenly turn his back on the Temple and God?

            Rav Yigal Ariel, in his work, "Mikdash Melekh" (pp. 322-323), suggests that the roots of Yoash's revolt against God can be seen even earlier, in the narrative of his Temple renovation project.  As we mentioned, during the early years of his reign Yoash depended entirely on Yehoyada, who raised, taught and trained the king.  As he grew older, Yoash likely resented his dependence on Yehoyada and sought to assert his independent power and authority.  But there was no way he could overtly reject the aged high priest, who was widely respected in the country for his heroism in overthrowing Atalya.  (See the unusual description of Yehoyada's burial, in Divrei Hayamim II 24:16, which appears to emphasize the widespread respect he had earned.)  Yoash therefore tried shaking himself lose of Yehoyada's control more subtly, by acting more pious than the kohen gadol.  Yoash perhaps embarked on the renovation project specifically to exert his independence and cast a shadow on the mystique surrounding Yehoyada and his fellow kohanim.  His criticism of Yehoyada and the kohahim for their laxity might be seen not as a sign of Yoash's genuine devotion to the project, but rather as a convenient opportunity for Yoash to assert his independence from, and superiority over, the kohen gadol.

            Once Yehoyada passed away, Yoash had no longer any need to assert himself in this manner.  We read in Divrei Hayamim II (24:17), "After the death of Yehoyada, the officers of Yehuda came, bowing low to the king, and the king listened to them."  Chazal (Midrash Tanchuma, Vaera) explain that the officers of Yehuda convinced Yoash that he is a god of sorts.  Apparently, after Yehoyada's death, Yoash surrounded himself with "yes-men" who allowed him to exert absolute authority.  He thus renounced all the teachings of his mentor, and now embarked on a much different program – the neglect of the Temple and adoption of pagan customs and practices.

FRIDAY

            Among the laws introduced in Parashat Mishpatim is that of the "ba ba-machteret," literally translated as, "the one who enters [a home to commit a robbery] underground."  The Torah states, somewhat ambiguously, "If the thief is seized while tunneling, and he is beaten to death, there is no bloodguilt in his case.  If the sun has risen on him, there is bloodguilt in that case" (22:1-2).  In other words, these verses present the laws of when one is permitted to kill a burglar who breaks into his home.  At first glance, these verses appear to point to the time of incident as the determining factor.  If the break-in occurred at nighttime, then the homeowner may assume the burglar is prepared to kill him, and may therefore kill the intruder on the grounds of self-defense.  If, however, "the sun has risen on him," meaning, the break-in took place during the daytime, the burglar does not necessarily intend to kill, and the homeowner may therefore not kill him on the pretext of self-defense.

Chazal, however, cited by Rashi in his commentary, explain differently.  Generally, when a burglar breaks in through an underground tunnel and the like, one may assume that he is prepared to kill the homeowner in order to steal the desired property.  If, however, the burglar is someone who clearly has no intention of killing the homeowner, such as if he is the homeowner's father, then the homeowner (son) may not kill the burglar.  If he does, "there is bloodguilt" – meaning, he is liable for murder.

            Thus, Chazal interpret the phrase "if the sun has risen on him" allegorically, to mean that if it is "clear as day" that the burglar has no murderous intentions, then the theft victim may not kill him.  Since his life is not threatened, he cannot kill on the grounds of self-defense.

            The Rishonim debate the question of whether Chazal interpret the verse strictly as an allegory, or as a double entendre.  Rashi writes in his commentary to this verse, "This is only a sort of allegory," implying that the plain meaning of the verse, that the law depends on the time of the break-in, is entirely rejected; the issue of day or night does not affect the law in any way.  This is likewise the position of the Rambam, in Hilkhot Geneiva (9:7,8,10), who writes explicitly that the time of the burglary is of no consequence; the right of the homeowner to kill the intruder depends only on the latter's identity.  The Ra'avad, however, strongly objects to the Rambam's position, and claims that under no circumstances may the homeowner kill the intruder if he breaks in during the daytime hours.  Chazal's interpretation of the verse is in addition to, rather than in place of, its straightforward reading.  The Ra'avad explains that if a burglar breaks in during the day, he likely assumes that the house is empty, and thus has no plans of killing anybody.  Only when he breaks in at nighttime, when people are generally home, may the homeowner assume that the burglar is prepared to kill in order to successfully execute his crime.  The Rashbam and Ramban, in their respective commentaries to these verses, also accept the straightforward meaning of the verse.

            Many years after God transmitted this law to Moshe and Benei Yisrael, the prophet Yirmiyahu invoked it as part of his harsh chastisement of the people of his time.  Condemning the bloodshed that plagued the nation, Yirmiyahu declares, "Moreover, on your garments is found the lifeblood of the innocent poor – you did not catch them breaking in" (Yirmiyahu 2:34).  Meaning, the murder victims were not killed because they broke into homes, in which case they would come under the rule of "ba ba-machteret."  Rather, they were completely innocent.  Why must Yirmiyahu emphasize that the victims were not trying to break into homes?

            Shadal offers a novel interpretation of this verse, viewing it in light of the prophet's accusation several verses earlier (verse 30): "Your sword has devoured your prophets like a ravening lion."  Rather than heeding the admonitions of the prophets, the people instead scorned and even killed them.  These prophets, Shadal suggests, are the "innocent poor" to whom Yirmiyahu refers in verse 34, about whom he says "you did not catch them breaking in."  The people killed the prophets because they accused them of treason and portrayed them as threats to the nation.  As prophets very often were sent to oppose the "party line" and fight against government decisions regarding alliances, rebellions and so on, their antagonists often accused them of betraying the people.  Yirmiyahu therefore criticizes the people's attitude towards the prophets, their viewing God's messengers as "breaking in," as slyly using prophecy as a tool to destroy the nation.

(Based on Nechama Leibowitz's weekly study pamphlet, Parashat Mishpatim, 5720)

David Silverberg

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