Vol. 18   No. 18

Parshas Mishpatim

Based on Rashi's interpretation of the Pesukim at the end of the Parshah (24:1-4), here is a synopsis of the events that took place on the fourth and fifth of Sivan, just before the Torah was given on the sixth:

On the fourth of Sivan, G-d instructed Moshe, Aharon, Nadav and Avihu, together with the seventy elders to ascend Har Sinai and to prostrate themselves at a distance. Moshe alone was then to approach the dark cloud (that housed the Shechinah). On the same day Moshe returned to the camp and informed the people of the obligation to separate from their wives and 'fence off' the Mountain, followed by a reading of the seven Mitzvos B'nei No'ach and the Mitzvos that they had been taught at Marah (Shabbos, Kibud Av va'Eim, Parah Adumah and Dinim). Following that, Moshe wrote out the Torah from Bereishis until Matan Torah (that was about to take place).

On the following morning, the fifth of Sivan, Moshe arose early and built a Mizbei'ach and twelve Matzeivos (Mizb'chos made of one stone) - one representing each tribe, at the foot of the mountain. He then sent the B'choros (who served as priests, until they were replaced by the tribe of Levi following the sin of the Golden Calf) to offer bulls as Olos and Sh'lamim. After an angel had divided the blood into two halves, Moshe placed the two halves in two bowls. One half he sprinkled on the Mizbei'ach, before reading out the Seifer ha'B'ris (that he had written on the previous day) to the people. He then sprinkled the other half of the blood on the people (to atone for them) and declared that this was the blood of the covenant that G-d had formed with them.

Citing Gemaros in Yevamos and K'riysus, Rashi comments that, based on the fact that Moshe sprinkled the blood of the Korbanos on the people, Chazal learned that Yisrael entered the covenant with Milah, Tevilah and Haza'as Damim (sprinkling the blood). It is unclear as to why Rashi omits the fourth basic requirement for Geirus to take effect, namely, that of 'Kabalas Ol Mitzvos'. In any event, Yisrael fulfilled it with distinction, when (in Pasuk 7) they declared "Na'aseh ve'Nishma!"

We know that Yisrael performed Milah before leaving Egypt from the well-known Chazal regarding 'the blood of Pesach and the blood of Milah' (See Rashi Parshas Bo, 12:6), and the current Pesukim describe the various Korbanos that they brought. It is the Tevilah, which is not specifically recorded, to which Rashi is referring.

Presumably, he is referring to the Gemara in K'riysus (9a), which explains that 'there is no Haza'ah without Tevilah'.

Consequently, it concludes, since the Torah records that Moshe sprinkled the blood on the people, they must have previously Toveled.

To reconcile Rashi with the Gemara in Yevamos (46a) which states that 'our fathers performed the B'ris Milah but did not Toveil', the Chizkuni interprets 'our fathers' as Avraham, Yitzchak and Ya'akov, and not to Yisrael at Har Sinai. Seeing as Tevilah is a requirement for Geirus no less than Milah, this implies that the Avos did not become full-fledged Geirim, in which case they would have been classified as B'nei No'ach, a popular point of discussion among the commentaries.

Rabeinu Bachye explains that the three above-mentioned requirements (Milah, Tevilah and Haza'ah) are crucial to Geirus, though it is clear that the latter does not prevent the Geirus from taking effect. Nowadays, he explains, when there are no Korbanos, Geirim can attain Geirus with the former two only. As for the Korban, the onus of bringing a Korban remains. When Mashi'ach arrives and the Beis-Hamikdash will be rebuilt, they will be able to fulfil their obligation. Needless to say, the Haza'ah will be performed then as well.

Discussing the significance of the 'Blood of the Covenant' (see Pasuk 8), Rabeinu Bachye attributes it to the connotation of blood that denotes bloodshed. It was a warning, he explains. citing Rabeinu Chananel, that if Yisrael failed to keep the Torah, G-d would retaliate with bloodshed. Perhaps, one might add, blood also symbolizes life, as the Torah writes (in Acharei-Mos) "because blood is the Nefesh (the Soul of Life)!" That being the case, it was also an assurance that, if they did keep the Torah, then they would be granted life. In similar vein, Chazal describe Torah as a 'Sam' - a balm of life for those who observe it, a potent poison for those who don't.

"And these are the judgements that you shall place before them" (21:1).

"Before them", Rashi explains, 'but not before gentiles'. Seeing as even Geirim (converts) are disqualified from judging, as the Gemara teaches us in the second chapter of Kidushin, why, asks the Riva, do we need a Pasuk to preclude gentiles? Quoting the Ram mi'Couci, he answers that a Ger is only disqualified from judging where there are Jewish Dayanim; but where there are not, he is permitted to judge. And he cites as an example, Sh'mayah and Avralyon (Hillel and Shamai's predecessors), who were Geirim, yet they sat as judges - because there was nobody who could match them. The Torah here therefore needs to add that a gentile is not eligible to judge even where there are no Jewish Dayanim.

" … and he (a Jewish servant) shall serve him forever" (21:6).

'Until the Yovel", Rashi explains. Or perhaps, he suggests, it means as long as his master is alive … . In any event, he concludes, it cannot mean literally forever, because if it did, why would we require a Pasuk ("and you shall pass them on to your descendents") to teach us that an Eved Cana'ani never goes free? If an Eved Ivri works for his master forever, then how much more so an Eved Cana'ani.

Alternatively, 'forever' is meant literally, only the case of an Eved Ivri speaks where he first declared that he wishes to remain with his master … , otherwise not; whereas "forever" in the case of a Cana'ani slave speaks even where the slave said nothing.

"And if he did not lie in wait but G-d brought it about … " (21:13).

Citing the Pasuk "From the wicked there emerges evil", Rashi explains that the Pasuk is talking about Reuven who had previously killed be'Shogeg, who is climbing a ladder, falling on Shimon, who had previously killed be'Meizid (both without witnesses). Shimon has now received his due punishment, whilst Reuven will now have to run to a city of refuge.

The Riva points out that although Rashi writes that Reuven was climbing a ladder, in fact he must have been descending it, since the Gemara confines the Din of fleeing to a city of refuge to someone who killed with a downward movement. Moreover, he points out, the Mashal must wafer to where he was carrying a dagger which pierced Shimon's heart when he fell on him, killing him; since a murderer is sentenced specifically to death by the sword.

Why, he asks further, is Reuven now not Chayav twice, since he killed twice be'Shogeg?

To which he answers that he is not Chayav for killing Shimon, who was already meant to die, and it is as if he killed a dead person.

This is difficult to understand however, because if the first person that he killed was not also Chayav Misah, how did he mange to kill him? How is it ever possible for one person to kill another, unless he is destined min ha'Shamayim to die? According to the Riva then, no killer should ever be sentenced to death, because the victim was already meant to die!!

(See also Rashi, Ki Seitzei, 22:8)

I would therefore suggest that Reuven is not Chayav for killing Shimon, just as the Riva suggests, only (not because Shimon was Chayav anyway, but rather) because Reuven was an Oneis. It was G-d who brought Reuven and Shimon together to the inn; it was G-d who arranged for Reuven to be descending the ladder, dagger in hand, as Shimon rested at the foot of the ladder, and it was G-d who caused Reuven to slip (not his own negligence, as is usually the case). Consequently, although neither Reuven himself, nor the witnesses, nor Beis-Din may be aware of the fact, it is for the earlier murder, where he was a Shogeg, that he is now obligated to run to the city of refuge, not for the current one (where he is an Oneis).

" … he (someone whose ox damaged his fellow-Jew's property) pays the best of his field and the best of his orchard" (22:4). From here we learn, says Rashi, that Beis-Din assess the damager's Idis (best-quality property) to pay for the damage that he caused.

The Riva offers a number of reasons for this ruling … 1. Based on the principle that a person prefers one Kav of his own (that he has worked for) than many Kabin of his friend's; 2. His own damaged goods were accessible and ready to benefit from; 3. To teach the damager to avoid damaging property belonging to others.

Regarding loans however, where the borrower does not withhold the money with the intention of harming his friend, but simply because he cannot afford to pay, the Torah permits him to pay with Ziburis (his worst-quality fields) - only the Chachamim obligated him to pay with Beinonis (average-quality), so as not to discourage potential creditors from lending money to those who need it.

Finally, with regard to paying a woman's Kesubah, the Chachamim permit the husband to pay with Ziburis (inferior-quality), seeing as there is no financial loss involved.

"Your Bikurim and your Terumah (mele'oscho ve'dim'acho) do not delay …" (22:28).

After translating the Pasuk in this way, Rashi comments that he does not know what the word "dim'acho" actually means. The Riva however, based on the word 'd'mo'os' (tears), translates it as 'liquid'. And he ascribes the Torah's choice of this word for Terumah to the fact that (seeing as the only three species that the Torah incorporates in the obligation to take Terumah are corn, wine and oil, which the Torah presents as Reishis degoncho, tiroshcho [your wine] ve'yitzhorecho [and your oil])" the majority of species that are subject to Terumah min ha'Torah comprise liquids.

Bikurim on the other hand, are taken from the seven species of fruit, most of which are solid, so that the term "dim'acho" will not pertain to them. "Mele'oscho" however, does, since it is the first Miztvah to take effect once the fruit ripens.

"Do not cook a kid-goat in its mother's milk" (23:19)

Rashi explains that this Pasuk appears three times in the Torah, to teach us the prohibition of cooking them together, of eating them once they have been cooked, and of deriving any benefit from them.

The Riva however, queries Rashi from his own words in Parshas Re'ei, where he explains that the three times come to preclude the meat of a Chayah, of a bird and of a Tamei (non-Kasher) animal from the prohibition.

(The Sifsei Chachamim however, answers that the latter set of D'rashos stems from the fact that the Torah specifically mentions a kid-goat in its mother's milk, and not simply meat and milk. It is as if the Torah had written "a kid-goat" - but not a Chayah; "a kid-goat"- but not a bird; "a kid-goat - but not a Tamei animal.)

Furthermore, the Riva asks, why do we need a specific Pasuk ("Lo sevashel") to forbid eating meat and milk? Why do we not already know this from the fact that the Torah has forbidden cooking them together, from the Pasuk "Do not eat whatever is abominable", from which Chazal extrapolate that one is forbidden to eat whatever the Torah has abominated?

That may well be, he answers, quoting R. Elyakim; but this latter Pasuk is a La'av shebi'klalus (a general La'av) which is not subject to Malkos (lashes). Consequently, we need the additional Pasuk of "Lo sevashel … " to render the transgressor Chayav Malkos.

" … and one man strikes his fellow-Jew with … a fist (be'egrof), and he does not die, but is bed-ridden" (21:18).

The word "be'egrof" also appears in Yeshayah (58:4) "with the fist (be'egrof) of a Rasha".

The Ba'al ha'Turim explains that our Pasuk requires the striker to be locked up, so that, in the event that the victim succumbs to his wounds, he (the striker) can be taken to Beis-Din and sentenced to death. That being the case, the stroke that he dealt the victim must have been a vicious one, that was fit to kill - he must have displayed 'the fist of a Rasha'. Otherwise, he would be Patur.

"Should he get up and go outside … only (rak) his work-loss shall he pay him and the doctor's fees" (21:19).

The word "rak", as is well-known, always comes to exclude something. Here, says the Ba'al ha'Turim, it comes to exclude a case where the victim did not follow the doctor's orders. For any of the above losses that come as result, he explains, the striker is exempt from paying.

" … if two men are quarrelling and they push a pregnant woman … if an accident occurs (and she dies), you shall pay a Soul for a Soul" (21:22/23).

The Torah uses the same phrase " … if two men are quarrelling" (regarding a case where to men are fighting, and the wife of a one then grabs hold of her husband's antagonist in an indecent way). Although the Torah writes there "you shall cut off her hand!", the Chachamim interpret this to mean (not literally, but) as a monetary fine.

We now learn from there that here, too, the striker is not put to death, but is made to pay a monetary fine. And the reason that he is not put to death, says the Ba'al ha'Turim, is because 'Someone who means to kill Reuven, and inadvertently kills Shimon' (as is the case here), is Patur from the death-sentence.

"And when a man strikes the eye of his slave … And if it is his tooth that he knocks out … " (21:26/27).

Both of these Pesukim, which teach us that if a man knocks out the eye or the tooth of his slave, then the slave goes free, begin with a 'Vav and end with a 'Vav', making a total Gematriyah of twenty-four. This, the Ba'al ha'Turim explains, hints at the other twenty four limbs (the tip of the fingers, the toes, the nose and the B'ris Milah) which, like the eyes and the teeth, set the slave free, should his master sever them. And he adds that the twenty-six words in the two Pesukim represent the combined twenty-four plus two limbs that set the slave free.

"If the thief is not found (Im lo yimotzei ha'ganav) … " (22:7).

This Pasuk is talking about a shomer chinam who claims that the article he undertook to look after was stolen, and swears to that effect. And the Torah concludes that if he is found to have sworn falsely, then he is obligated to pay double. The reason for this, as Rashi explains, is because he himself is the thief, and a thief pays double.

Hence the Ba'al ha'Turim points out - the Gematriyah of "Im lo yimotzei ha'ganav" is equivalent to that of 'Hu atzmo gonav" (he himself stole it).

A reason for this Mitzvah the author already gave in the Mitzvah of Ma'aser Beheimah (Mitzvah 360) in Bechukosai.

Some Dinim of the Mitzvah … The Gemara in Bechoros (53b) prohibits Ma'asering from one year to the next, as the Sifri, commenting on the Pasuk "shonoh shonoh" writes 'this teaches us that one may not separate Ma'aser from one year to the next. And it goes on to learn the other Ma'asros (besides Ma'aser Sheini) from the double Lashon "Aser te'aser" … The Chachamim also say in the opening Mishnah of Rosh Hashanah that the fifteenth of Sh'vat is the New Year for the Ma'aser of trees. Effectively, this means that any tree that has reached the stage of Ma'asros before the fifteenth of Sh'vat is subject to Ma'asros of that year (Ma'aser Sheini or Ma'aser Oni), depending on the year of the cycle … , after that date, it belongs to the following year. The Author already presented the respective stages that obligate the separation of Ma'asros of various species of trees, above, in the Mitzvah of 'Ma'aser Rishon' (Mitzvah 395) in Parshas Korach. He also explains there that the Mitzvah of giving Ma'asros min ha'Torah is confined to corn, wine and oil, and that all other species are only mi'de'Rabbanan … the remaining Dinim of Ma'aser Sheini are to be found in its own Masechta (Ma'aser Sheini).

This Mitzvah only applies in Eretz Yisrael, when the majority of Yisrael are living there and Yerushalayim is settled, may we merit this to be fulfilled soon. And in Parshas Shoftim in the Mitzvah of Terumah, the author will discuss the locations that are subject to Terumah, Ma'aser Rishon, Ma'aser Sheini and Terumah.