The Israel Koschitzky Virtual Beit Midrash
Surf A Little Torah
Yeshivat Har Etzion
PARASHAT MISHPATIM
By Rav David Silverberg
The Torah states in Parashat Mishpatim (23:5), "If you see your enemy's donkey crouching under its load, and you would abstain from assisting him you shall surely assist him." The commentators note the unusual syntax in this verse, which employs the verb a.z.v. to mean "assist" ("ve-chadalta mei-azov lo, azov ta'azov imo"), a verb that generally denotes "leave." Rashi claims that the verb a.z.v. can indeed be used to mean "assist," and he cites evidence from a verse in Sefer Devarim (32:36 "ve-efes atzur ve-azuv").
A
particularly creative interpretation of this verse appears in Targum Onkelos,
which accepts the common explanation of a.z.v.
even in this context. Onkelos translates the final clause in the phrase to mean,
"you shall surely abandon what is in your heart about him, and unload with
him." According to this rendition,
the Torah admonishes the individual to "leave" or "abandon"
his feelings of animosity towards the animal's owner, and offer him
assistance. It should be noted that in
the
Why would the Torah emphasize that one must "abandon what is in his heart" in this situation? Why does not it suffice to simply require one to offer assistance to his enemy just as he would to anyone else? Would this not implicitly require "abandoning" one's hard feelings? What might this emphasis seek to convey?
Rav Dov Weinberger, in his Shemen Ha-tov, suggests that the Torah here not only obligates offering assistance in this situation, but also refers to the manner in which the assistance is to be rendered. When helping his enemy, one might be tempted to either explicitly or implicitly say something to the effect of, "I really should not be doing this for you"; "You don't deserve any favors from me, but I am helping you anyway"; "I am entitled to despise you and leave you alone, but I am better than you, so I am helping you." The Torah demands that when one's fellow Jew is in need, he abandon his hard feelings entirely, forget the sorrowful history of their strained relationship, and rush to his fellow's assistance. Helping is not enough; one must help without any resentment or ill will, and with only the enthusiasm and sincerity that should accompany an act of kindness towards a fellow Jew.
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Parashat Mishpatim comes on the heels of the dramatic divine Revelation at Ma'amad Har Sinai, and brings us from the realm of the experiential to the realm of the technical, presenting laws dealing with property damage and the like. The Midrash (Shemot Rabba 30:3) observes that the theme of din and mishpat judgment appears not only after the account of the Revelation, but immediately preceding it, as well. Before the narrative of Ma'amad Har Sinai, in Parashat Yitro, we read of Moshe's assignment of a team of judges to share with him the burden of the nation's legal needs. The Midrash likens this structure of the Giving of the Torah surrounded on either end by the theme of mishpat to a noblewoman flanked on either side by armed guards.
How might we understand the significance of this structure and the relevance of the analogy presented in the Midrash?
Rav Yerucham Lebovitz suggests an explanation in accordance with the classic teachings of the Musar movement. In this context, he writes, the term din (law) refers to a broader concept than legal proceedings; Chazal here speak of the general notion of strict justice the midat ha-din as opposed to the midat ha-rachamim, the divine attribute of compassion. Surrounding the Torah on either end is an "armed guard," the awareness of God's exacting judgment. Just as members of nobility are flanked by armed escorts for their protection, so is Torah observance protected by the concept of din, of God's strict justice.
Rav Yerucham elaborates in this
context on the theme of this kind of "fear" which results from a
constant awareness of divine judgment.
He writes that a person experiencing anxiety is generally unable to
allow himself to indulge and engage in sinful behavior. A Jew must live each moment with some degree
of "anxiety," with some level of awareness that he is being watched
and judged by the Almighty. Rav Yerucham comments that what
enabled Yosef to withstand his trials in
While the attribute of rachamim undoubtedly plays a crucial role in our relationship with God, it is aspect of din that "guards" the Torah, like the armed guards surrounding a nobleman. If we "surround" ourselves with the idea and awareness of din and mishpat, then we are less likely to forget or neglect our religious responsibilities.
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The first half of Parashat Mishpatim presents the various categories of nizkei mamon, damage caused by a person's property, such as by his animals or fire. These categories include shein ve-regel (literally, "tooth and foot"), situations where one's animal causes damage to the property of another by grazing or treading.
The opening Mishna of the sixth chapter of Masekhet Bava Kama (55b) establishes that if one locks his animals in their pen and closes the gate such that it can reasonably be expected to keep them inside, he does not bear responsibility for damage they cause should they somehow escape. Since he met reasonable standards of the animals' confinement, he has satisfied his obligation with respect to damage they cause through some extraordinary means of escaping the pen. Thus, for example, the Mishna rules that if burglars break into the pen, and as a result the sheep escape and graze on a neighbor's property, the owner bears no liability.
The Mishna then addresses a slightly different case, where the thieves actually brought the sheep out of the pen (hotzi'uha listim). In this case, the thieves do not simply break in, but actively lead the sheep outside. The Mishna rules that if the thieves are caught, they bear liability for any damage caused subsequently by the sheep outside the pen.
To summarize, then, one who simply breaks open the gate of an animal's pen does not bear liability for damage caused by the animals upon their escape, unless he actively leads the animals outside the pen.
In light of this Mishna, scholars were baffled by the Rambam's ruling in Hilkhot Nizkei Mamon (4:2): "One who breaks a fence in front of his friend's animal, and it left and caused damage if the fence was sturdy and strong, he is liable." The Rambam rules that even if the individual breaking the fence did not actively lead the animal outside, he bears liability for consequent damage in direct contrast to the implication of the Mishna, as discussed above. Oddly enough, the Rambam himself, just one paragraph earlier, codified the Mishna's ruling, writing that if thieves break through the fence the sheep's owner does not bear liability for damage they cause, but "if thieves brought it outside and it caused damage, the thieves bear liability." Like the Mishna, the Rambam in this paragraph strongly indicates that the thieves are liable only once they bring the animal outside the pen.
The
Migdal Oz commentary to Mishneh Torah cites the Rambam's
own explanation of his surprising ruling, which he wrote in response to a
question posed to him by the Chakhmei Lunel (the scholars of
Thus, according to the Rambam, a criminal's intent determines the point at which he assumes responsibility for damages caused by the property in question. The thief does not immediately bear liability for damages caused by animals freed as a result of his break-in, because he assumes "owner" status only when he completes his crime of theft. The vandal, however, assumes this status immediately upon breaking the fence the criminal act that he had set out to perform.
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In Parashat Mishpatim, the Torah presents for the first time the prohibition of basar ve-chalav meat and milk: "Lo tevashel gedi ba-chalev imo" ("Do not cook a kid in its mother's milk" 23:19). The Gemara in Masekhet Chulin (115b) cites a Berayta stated by Rabbi Yishmael which derives the three different prohibitions involving basar ve-chalav from the fact that this verse appears a total of three times in the Torah (Shemot 23:19 and 34:26; Devarim 14:21). These three verses correspond to the prohibitions against cooking, eating and deriving benefit from a meat-milk mixture.
The Rambam, however, identifies a different source of these three distinct prohibitions. He writes in Hilkhot Ma'akhalot Asurot (9:2), "Scripture was silent in forbidding the consumption [of basar ve-chalav] only because it [already] forbade cooking [meat with milk], as if to say, even cooking it is forbidden, not to mention eating it." According to the Rambam, all three instances of the prohibition against "cooking a kid in its mother's milk" refer to cooking, as the plain meaning of this phrase obviously suggests. The prohibition against cooking is derived through logical extension; meaning, the prohibition against cooking is implicit within the prohibition against cooking. If the Torah forbade cooking, then it clearly forbade eating, as well. The Rambam repeats this idea later, in Hilkhot Tum'at Meit (1:2). And as for deriving benefit, the Rambam writes in Sefer Ha-mitzvot (lo ta'aseh 187) that eating is but one example of deriving benefit, and thus the prohibition against eating basar ve-chalav is naturally extended as well to all types of benefit.
The Acharonim discuss the fact that the Rambam offers a different explanation than the one given by the Gemara. The Kenesset Ha-gedola (Y.D. 87:6) contends that the Rambam wrote his explanation merely for the purpose of responding to the Karaites, who rejected the oral tradition of Chazal and understood the prohibition as referring only to cooking meat with milk, as the plain reading of the verse would suggest. The Rambam sought to justify the traditional understanding of this law by demonstrating how even the plain reading which speaks only of cooking could accommodate a prohibition against eating if we read it as "do not even cook a kid in its mother's milk." This is not, however, the Rambam's actual understanding of the source of the three prohibitions; in truth, he accepts the Gemara's explanation, that the three references to the prohibition against cooking introduce the three prohibitions of cooking, eating and deriving benefit. The Kenesset Ha-gedola brings precedent for his theory from the Semag (lo ta'aseh 135), who cites the Gemara's reading of the three verses and then proceeds to advance the same explanation mentioned by the Rambam, with the expressed intent of refuting the claims of the Karaites.
However, Rav Menachem Kasher, in his Torah Sheleima (Shemot, chapter 23, note 269), notes that the Rambam's reading of this prohibition is explicitly mentioned in the Mekhilta de-Rabban Shimon Bar Yochai: "'Do not cook a kid in its mother's milk' this comes to forbid its cooking, all the more so its consumption." It is thus likely that the Rambam simply preferred this source over the Gemara's derivation, and did not propose an interpretation simply to refute the claims of the Karaites. (It should be noted that Rav Kasher composed an entire work demonstrating how the Rambam often showed preference to the Mekhilta de-Rabban Shimon Bar Yochai over the Talmud in reaching halakhic conclusions.)
The Kesef Mishneh (in Hilkhot Tum'at Meit) raises the question of why, according to the Rambam's understanding, one is liable to malkot (flogging) for partaking of basar ve-chalav. A fundamental halakhic principle states ein oneshin min ha-din; meaning, prohibitions arrived at through logical deduction, as opposed to through the process of exegesis, are not subject to corporal punishment. Now according to the Rambam, the prohibition against eating basar ve-chalav is deduced a fortiori from the prohibition against cooking. Why, then, is this transgression punishable with malkot?
The Kesef Mishneh answers by formulating the Rambam's theory slightly differently. He explains that the Rambam understood the verse as forbidding basar ve-chalav as a safeguard against eating milk with meat. Chazal did not establish the prohibition against consumption a fortiori from the prohibition of cooking. Rather, the verse forbade cooking to prevent against the possibility of eating, and therefore the prohibition against eating is implicit in the verse. This prohibition is thus not arrived at through logical deduction, and for this reason its violators are candidates for corporal punishment.
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Parashat Mishpatim opens with the laws of the eved ivri, the "Hebrew indentured servant," whose master must release him after six years of service. The Torah instructs that should the servant say, "I love my master, my wife and my children" referring to the master's gentile maidservant whom an indentured servant may marry he has the option of remaining in the master's service. In such a case, the master performs the ritual of retzi'a, piercing the servant's ear by a doorpost, signifying his renewed term of subjugation which culminates on the jubilee year.
The Chazon Ish (E.H. 148) raised the interesting question of why the Torah called for a special institution of retzi'a to allow a servant to remain in service. After all, why can't the servant simply sell himself anew to the master? Why is there the need for a special halakhic ritual to enable the servant to remain? True, according to one view in the Gemara (Kiddushin 14b), an eved ivri who sells himself as opposed to one who is sold by the court due to his inability to repay property that he had stolen may not marry a gentile maidservant. Therefore, selling himself anew would not help a servant who wishes to remain in service to continue his marriage to the maidservant. According to the other view in the Gemara, however, even a person who sells himself into indentured servitude is entitled to marry a shifcha Kena'anit (gentile maidservant). Within this position, then, the question arises as to why a special institution of retzi'a is necessary.
The Chazon Ish answered by noting several halakhic differences between an eved nirtza (an eved ivri after the retzi'a ritual) and an eved ivri serving in his first six years. Firstly, as the Gemara establishes in Masekhet Kiddushin (21b), an eved nirtza goes free upon his master's death, whereas a servant during the first six years remains in the service of the inheritors until the end of the six-year period. Secondly, and perhaps more prominently, an eved nirtza remains in service until the jubilee year, whereas if he were to simply sell himself anew, he would be eligible for release after six more years. Conceivably, a master might not want to renew the contract, so-to-speak, for just another six years, and would prefer the retzi'a process which ensures that the eved ivri will stay on the job until the yovel (jubilee). This easily explains why a separate institution of retzi'a is necessary.
Another answer arises naturally from the discussion of the Minchat Chinukh (42:17), who claims, based on the Sifra, that the Torah forbids selling oneself as an eved ivri unnecessarily. Selling oneself is permissible only as a last resort for somebody who has fallen into poverty. Therefore, an eved ivri would not necessarily be entitled to renew his term of servitude after six years, and for good reason the Torah had to devise a special system whereby he can remain in his master's service.
The Chazon Ish raised this question amidst his discussion of a separate issue, namely, whether or not a master is required to perform retzi'a if his servant expresses his desire to remain. According to the Chazon Ish, no such obligation exists. Retzi'a, he contends, is merely the means by which an eved ivri remains in service; it is not a mitzva incumbent upon the master. Therefore, he raised the question of why the Torah instituted the system of retzi'a rather than allowing the servant to sell himself anew. Others, however, argued that there is indeed a mitzva for the master to keep his servant should the latter wish to remain. Among the proofs cited for this notion is the Gemara's comment in Masekhet Sota (8a) that one may not perform retzi'a on two servants simultaneously, due to the principle of ein osin mitzvot chavilot chavilot one should not combine mitzvot into a single act, rather than affording each its own, separate context. The application of this principle to retzi'a appears to suggest that it indeed constitutes a mitzva incumbent upon the master.
If so, then the Chazon Ish's question is easily resolved: the Torah did not institute retzi'a as a means of allowing the servant to remain, but rather obligated the master to keep the servant through the retzi'a process.
Tomorrow we will be"H discuss other sources relevant to this question as to the nature of retzi'a.
(Taken from the work Peninim Mi-bei Midresha by Rav Chayim Leib Eizenstein)
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Yesterday, we discussed the retzi'a ritual, which the Torah introduces in Parashat Mishpatim (21:6), whereby an indentured servant can remain in his master's service even after the completion of six years, when he is given the option of freedom. The master pierces the servant's ear as a symbol of his subjugation, and the servant remains in the master's service until the jubilee year. The issue we discussed yesterday is whether or not retzi'a constitutes an obligation upon the master. Meaning, is retzi'a merely the mechanism by which an indentured servant prolongs his tenure should he and the master have interest in doing so, or is it a mitzva upon the master to keep the servant should the latter wish to stay on the job? As we saw, the Chazon Ish decidedly wrote that no obligation exists to keep an indentured servant after the completion of the six-year period.
One possible indication that there indeed exists such a mitzva, as we discussed, is the Gemara's ruling (Sota 8a) that one should not perform retzi'a on two servants simultaneously, due to the principle forbidding the "wholesale" performance of multiple mitzvot in a single context (ein osin mitzvot chavilot chavilot). By applying this rule to retzi'a, the Gemara appears to assume that retzi'a indeed constitutes a mitzva. In response, the Chazon Ish might contend that retzi'a becomes a mitzva only once the servant and master express their mutual consent to the extension. Retzi'a would then fall under the category of mitzvot which we might term "procedural mitzvot," meaning, mitzvot that dictate how one goes about handling a given situation. The most obvious example is divorce. Though obviously the Torah does not obligate a husband to divorce his wife, there is a mitzva detailing the procedure by which this is done should a divorce be desired. Correspondingly, one might contend that retzi'a constitutes a mitzva in the sense of mandating the procedure to be followed in the event that both servant and master wish to extend the period of service. This Gemara therefore gives us no indication as to whether the master is indeed obliged to accept the servant back.
Rav Asher Zelig Weiss, in his Minchat Asher, discusses this issue and cites a passage from Rav Elchanan Wasserman's Kovetz Shiurim to Masekhet Kiddushin (22a) that perhaps bears relevance to this subject. The Midrash (Tanchuma Yashan, Parashat Vaetchanan) comments that when Moshe pleaded with God to allow him to enter Eretz Yisrael, he invoked this verse in Parashat Mishpatim describing the servant who wishes to remain with his master: "I love my master I will not go free." Moshe, too, expresses his love for his Master, the Almighty, and asks to remain in His service. Rav Elchanan cites the Maharil Diskin as explaining on the basis of this Midrash a verse in Sefer Devarim (3:26), which tells of God responding to Moshe's pleas, "Speak no more to Me about this matter." According to the Gemara in Masekhet Kiddushin (22a), retzi'a is performed only if the servant twice expresses his desire to remain under his master. God therefore ordered Moshe not to express his wish a second time, for if he would, the retzi'a law would take effect and God would have to grant Moshe's request.
Of course, this was said in a homiletical, rather than halakhic, context; nevertheless, it is hard to ignore the assumption made by the Maharil Diskin in explaining this Midrash that a servant's repeated request to remain requires the master to take him back into service.
In any event, Rav Weiss himself strongly advocates the position of the Chazon Ish, that a master is not obligated to keep the servant after six years of service.
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Parashat Mishpatim introduces the mitzva of shemitta, the "sabbatical" year: "And for six years you shall sow your land and gather its grain; but in the seventh, you shall leave it and abandon it" (23:10-11).
We find among the commentators an interesting debate in explaining the two words used in the second of this pair of verses in reference to the obligation of shemitta tishmetena and netashta (which we translated as "leave it" and "abandon it"). The more intuitive approach, it would seem, is that of the Ramban, who claims that these two terms correspond to the two activities described in the first verse: "you shall sow your land and gather its grain." Tishmetena, the Ramban claims, refers to abstaining from cultivation, whereas netashta means declaring one's produce ownerless, and thus refraining from collecting it.
Ibn
Ezra, however, as the Ramban cites, explains the verse much differently. In Sefer Devarim (beginning of chapter 15),
the Torah discusses the law to remit debts during the shemitta
year, and employs the verb sh.m.t. in
reference to debt-cancellation ("shamot";
"tashmeit" Devarim 15:2-3). On this basis, Ibn Ezra contends that here in
Parashat Mishpatim, too, the word tishmetena
refers not to agricultural inactivity, but rather to the remission of
debts. The second term, netashta, speaks of the agricultural aspect of shemitta, requiring that one discontinue farming
work during the sabbatical year.
The obvious difficulty
with Ibn Ezra's approach involves the ambiguous pronoun in the word tishmetena ("you shall leave it"). At first glance, according to Ibn Ezra,
"it" refers to owed funds, something which is never mentioned in this
verse. According to the Ramban's
interpretation, the direct object of both tishmetena and netashta is
the "land," which is mentioned, of course, in the previous
verse. For Ibn Ezra, however, tishmetena refers
to the cancellation of debts. How can he
read tishmetena to mean "cancel debts" if this
verse makes no reference whatsoever to debts?
In Ibn Ezra's Peirush Ha-arokh, he appears to address this problem, and he
resolves it by identifying the seventh year, rather than the land or debts, as
the direct object of the words tishmetena and netashta.
Commenting on the word tishmetena, Ibn
Ezra writes, "that it be called a shemitta for the Lord." In other
words, the word tishmetena should be read as, "observe it [the
seventh year] as a shemitta," or
"observe it as a year of remission."
As for netashta, Ibn Ezra cites a verse from Sefer Nechemya (10:32), "ve-nitosh et ha-shana ha-shevi'it," where the seventh year is described
as the object of the verb n.t.sh.
While the precise meaning of "abandoning" the seventh year
remains unclear, this approach easily explains how tishmetena can refer to the cancellation of debts, a law that otherwise is not
mentioned anywhere in this verse.
Support for Ibn Ezra's
interpretation may be found in the opening word of this verse, "ve-ha-shevi'it."
Although we translated it in our initial citation as "in the
seventh year," it literally means, "the seventh year." This syntax very well accommodates Ibn Ezra's
approach, which reads the verse as, "But the seventh year you shall
observe it as [a year of] remission and abandon it."
Interestingly,
however, Ibn Ezra very clearly does not follow this interpretation in his Peirush Ha-katzar.
Although here, too, he explains tishmetena as a reference to the remission of debts, he also writes that netashta means abandoning one's land as if he is not
the owner, and, perhaps more significantly, he writes that we should read the
beginning of the verse as, "in the seventh year," rather than
"the seventh year
" In this
context, then, he does not explain tishmetena and netashta as
referring to the seventh year, and it remains unclear how Ibn Ezra suggested reading
the word tishmetena here in his Peirush Ha-katzar.