CHAMISHOH MI YODEI'A - FIVE QUESTIONS ON THE WEEKLY SEDRAH - PARSHAS MISHPOTIM 5767 - BS"D

2) Ch. 21, v. 20: "V'chi ya'keh ish es avdo o es amoso BA'SHEIVET" - The case detailing the hitting of a servant who later dies tells us that the master hit him with a staff. Why does the Torah elaborate on the item used for smiting?

3) Ch. 21, v. 37: "Chamishoh bokor y'sha'leim tachas hashor v'arba tzone tachas ha'seh" - A) Why is the one who steals these items punished so heavily, B) and why more when stealing an ox?

4) Ch. 22, v. 2: "V'nimkar bigneivoso" - This only applies when he has no money to repay the theft, as is clearly stated in this verse. Being sold as a slave is an extremely strong punishment for theft, much harsher than the double repayment required for a thief of some means. Wouldn't logic dictate that a destitute person be dealt with more leniently?

5) Ch. 22, v. 3: "Shnayim y'sha'leim" - He shall pay double - A surreptitious thief, a "ganov," pays back double, while an overt robber, a "gazlon," only pays back the principle. Why?

ANSWERS:

#1

1) The Ramban on Vayikra 26:11 comments: "He who has a totally close relationship with Hashem, Hashem will deal with him in a supernatural way, above the laws of nature. Hashem will remove sickness from him and he will have no need for a doctor or to follow the guidelines of healing procedures at all. For a person of this stature it is written, "Ki Ani Hashem rofecho" (Shmos 15:26). What place do doctors have in the house of a truly G-d fearing person about whom it is written "V'hasirosi machaloh mikirbecho" - And I will remove sickness from within you (Shmos 23:25)? The gemara which derives that permission is given to a doctor to heal, is specifically worded from the vantage of the doctor. Yes, he may heal, but the Rabbis did not say that the ill person should avail himself of the doctor to be healed.

2) Rabbeinu Bachyei and the Ibn Ezra say that one should pursue the healing skills of a doctor when dealing with disorders which affect the surface of the body, as is the case in this chapter, where someone afflicted a wound upon another. However, when a person has an internal disorder, he should not turn to a doctor, but instead only rely on Hashem's healing powers. This is the complaint of the verse in Divrei Ha'yomim 2:16:12 about the King Asso, "Gam b'cholyo lo dorash es Hashem ki im b'rofim." King Asso had an internal health disorder. (The verse says that he had a sickness in his legs. Perhaps it was a vascular problem, which is considered internal.)

Perhaps a strong allusion to the difference between an external illness and an internal one is indicated by the words of the verse mentioned earlier by the Ramban, "V'hasirosi machaloh miKIRBECHO," - from INSIDE you. However, a sickness that is upon the surface is within the purveyance of a doctor.

3) Tosfos on the gemara B.K. 85a d.h. "shenitnoh" asks why there is a need for a double expression "v'rapo y'ra'pei." He answers that if there were only one expression used we would limit the permission to heal to a case of a health disorder that was inflicted by a human, as is the case of which the Torah speaks. Now that we have an extra expression of healing, a doctor may even heal a disorder that was Heavenly inflicted. The reason one would think that a Heavenly inflicted disorder should not be treated by a doctor is because it would seem like one is trying to go against a Heavenly edict that this person should be ill. Rashi seems to agree with Tosfos that even a Heavenly ordained sickness may be tended to by a doctor, because he also says that without the verse permitting it, one would think that attempting to heal is trying to go against a Heavenly edict that this person should be ill. Rashi does not point out that this is derived from the double expression.

Tosfos gives a second answer. The extra word teaches us that a doctor may take payment for his services. He adds that this is indicated by the expression of the word form HEAL which will more likely be successful when done for pay rather than gratis, as the gemara says (ad loc), "A doctor for nothing (for free) is worth nothing." (See Shulchan Oruch Y.D. 336:1 regarding doctors' fees.)

4) The Rashb"o in his responsa 1:413 says that one MUST go to a doctor in an attempt to have himself healed. However, he should place his trust in Hashem only. This is clearly stated in Divrei Ha'yomim 2:16:12, where King Asso was criticized for placing his trust in doctors only.

This seems similar to the attitude towards any human endeavour, for a livelihood, etc. You do your best and Hashem does the rest. Effort is expended, but one must realize that success comes only from Hashem.

5) Chovas Hal'vovos in Shaar haBitochone chapter #4 writes that in any endeavour a person should pursue paths according to the laws of nature, to the best of his ability. However, he should not feel that his efforts have brought him success, but rather that his success comes solely from Hashem. This is true in matters of health and sickness as well.

6) Shulchan Oruch Y.D. 336:1 states: "The Torah has given permission to doctors to heal, and it is a mitzvoh for them to do so. Healing goes under the ruling of saving one's life. If one refrains from healing, he is guilty of spilling blood (a murderer). This is true even if another doctor is available, since an ill person does not always merit to be healed through just any doctor. These words of the Shulchan Oruch are taken from the writings of the Ramban in Toras Ho'odom. Please note that the points mentioned in the Sh.O. are from the vantage point of the doctor, not the ill person.

7) The GR"A is quoted in the Maa'seh Rav as saying that the gemara gives permission to a doctor, but does not state that an ill person should go to a doctor for healing. It is incumbent upon a person who is truly reliant upon Hashem to place his full trust in Hashem for complete recovery from a health disorder.

The Baal Haturim on Shmos 15:26 and Rabbeinu Bachyei point out that the two words "v'ra*P*o y'ra*P*ei have the letter Pei with a dot in them, called Pei kashya, a hard Pei. When a doctor is the agent for healing, his modalities come with difficulties, harsh medicines, surgery, demanding therapies, (fees,) hence the Pei kashya. The verses in Tanach which mention Hashem's healing are almost always expressions of healing, "r'fu'oh," written with a Fei without a dot, called Fei rofo, a soft Fei. This indicates soft healing, not accompanied by difficulties. Examples are, "Ani Hashem ro'*F*echo (Shmos 15:26), and "R'*F*o'eini Hashem v'eiro*F*ei" (Yirmiyohu 17:14).

#2

The Rashbam says that the ruling of this verse that if the servant survives for over a 24-hour period the master is acquitted of the death penalty is only so if he hit with a staff, indicating that he hit the servant to push him into proper subservience. However, if he hit him with a sword, this indicates hitting with malicious intent, and even if the servant survives for over 24 hours, but dies later from the injury, the master is culpable for the death penalty.

#3

1) The gemara B.K. 79b gives two reasons for the disparity between payment for an ox, 5 times its value, and a sheep, 4 times its value. Rabbi Yochonon ben Zakai says that the Torah has mercy even upon a thief. Since the thief wants to make a quick get away, he can carry a sheep. Since this entails some great effort and embarrassment, he only pays quadruple the value of the sheep. An ox is too heavy to carry, so the thief leads it away. He is not subject to the embarrassment of carrying an animal in front of people, and therefore pays more, five times the value of the ox.

2) Rabbi Meir says that one pays only 4 times the value of a sheep because its loss is not that of a working animal. However, when an ox is stolen, not only does the owner endure the financial loss, but also loses a working animal. Therefore the thief pays 5 times its value. These two explanations only deal with question B.

3) The Ibn Ezra offers another explanation in the name of Rabbi Y'shu'oh. A sheep can be hidden and stolen. This can be done by anyone. To steal an ox and do this in a concealed manner requires the skills of a professional thief. A professional thief deserves to pay professional prices when caught. Again, this only answers question B.

4) The Rambam in Moreh N'vuchim explains that in general people can keep personal items locked and away from thieves. This serves as a deterrent and thus theft of such items is not so common. The Torah therefore suffices with a double payment from the thief. Cattle must be brought to pasture. This leaves them open to theft without having to break into someone's property. To avoid this becoming widespread the strong deterrent of double the normal double payment is levied. This explains the quadruple payment for the theft and sale/slaughter (so that the thief would not be caught red-handed with the theft in his possession) of a sheep. Why five times the value for an ox? Sheep generally graze together and the shepherd can keep an eye out over his whole flock for theft. Oxen graze in a very spread out area. It is impossible for one guard to keep an eye on all of them, thus raising the ease of opportunity for stealing an ox. This deserves even stricter retribution, hence a payment of five-fold is levied. This answers both questions.

#4

A person who has no assets would have no deterrent from stealing, because once he has passed it on or has consumed it, there is no recourse for the victim to recover his loss, as the poor thief has no assets. The world would thus be filled with robbers, an untenable situation. The Torah therefore meted out such strong medicine to deter a poor person from stealing. (Sforno)

#5

1) The gemara B.K. 79b says that a surreptitious thief, a "ganov," pays double because the "ganov" shows that he has greater fear of man than of Hashem, as demonstrated by his only stealing while the owner is away.

Rabbi Chaim Vi'tal offers a few more reasons:

2) One sometimes can avoid being robbed by a "gazlon," by standing up against him.

3) Since the victim sees the "gazlon" there is hope that he will recover his loss.

4) The "gazlon" out of embarrassment might repent and return the item.

5) Brazen robbery in front of a person is less prevalent than "g'neivoh." A sin that is more prevalent deserves stronger medicine to remedy it.

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