Vol. 11   No. 18

Parshas Mishpatim

(Raban Yochanan ben Zakai explains that the Eved Ivri had to have his ear pierced, because 'the ear that heard on Har Sinai "Do not steal", yet it went on to steal, deserves to be pierced'.

This is how he is quoted in the Mechilta. The Gemara in Kidushin (22b), citing a Tosefta, however, quotes him differently (see Rashi on this Pasuk). According to the Gemara, what Raban Yochanan ben Zakai said was that the ear that heard on Har Sinai "For Yisrael are My servants ... ", and which subsequently went and acquired a human master, deserves to be pierced. At first sight, it appears that the Mechilta is referring to a servant whom Beis-Din sold to pay for the theft which he is unable to return, whereas the Gemara is referring to one who sold himself. And indeed, this is how Rashi explains the apparent discrepancy.

The problem with this is however, that this Parshah deals specifically with the former kind of Eved Ivri, who is sold to pay for his theft (the latter kind is dealt with in Parshas Behar), in which case, the reason given by the Gemara in Kidushin is inappropriate.

Before answering this question, we need to understand the Mechilta. If the Eved Ivri's ear is pierced, why does he have to wait until he asks to remain beyond the six years? Why is his ear not pierced immediately? As a matter of fact, why does a thief need to be sold at all before having his ear pierced? Why not as soon as he is caught?

The K'li Yakar answers that a thief is obligated to pay double. If he cannot, he is sold. To sell him on top of that, would be a contravention of the principle not to give a person two punishments for one crime. Once the Eved decides to stay on however, he sins again, by accepting on himself the yoke of a human master. And it is for this the Torah prescribes the punishment of having his ear pierced.

However, the K'li Yakar's answer is unacceptable, since now, the Eved is not being punished for stealing, but for acquiring a human master. Whereas according to the explanation of the Mechilta, his ear is being pierced for stealing.

With this we can understand the Gemara in Kidushin. The truth is that the same question that we asked on the Mechilta, we can ask on the Gemara too. If the Eved's ear has to be pierced for acquiring a human master, why is it not pierced immediately, at the beginning of the six-year period?

The Cheishek Shlomoh in Kidushin actually asks this question, and he answers that Hashem has only prohibited selling oneself permanently. He does not mind someone selling himself for six years, but He objects to a permanent sale, and it is for this that He sentences him to have his ear pierced.

(See also the first piece of "Parshah Pearls").

In that case, it makes no difference whether the Eved sold himself due to poverty, or whether he is sold by Beis-Din for stealing, the Torah does not prescribe piercing his ear immediately, because, for the reasons that we explained, it is inappropriate to do so at that stage.

Once however, the Eved asks to stay on beyond the six years, thereby acquiring himself a master, that is when he has his ear pierced. And this is also the view of the Torah Temimah.

This explanation also clarifies why the Gemara prefers the Tosefta's version of Raban Yochanan ben Zakai's 'bag of spices' rather than that of the Mechilta, since there is never any justification to pierce the Eved's ear for stealing, as we explained.

The Yerushalmi presents a third interpretation of Raban Yochanan ben Zakai's statement. According to the Yerushalmi, what he said was 'the ear that heard on Har Sinai "Do not have other gods", and which subsequently went and divested itself of the yoke of Malchus Shamayim, to adopt instead the yoke of a human being, shall be pierced.'

The Torah Temimah suggests that Raban Yochanan ben Zakai retracted from the D'rashah cited in he Gemara, because the words "because Yisrael are My servants ... ", which appear in Behar (25:55) were not said at Har Sinai, but by the Ohel Mo'ed. "Do not have other gods ..." was (in the Ten Commandments).

"And his master shall pierce his ear with an awl" (21:6).

The ear that heard at Har Sinai "because B'nei Yisrael are My servants", went and bought himself another master, shall be pierced, Rashi explains. The question arises, asks the Rosh, that in that case, the servant's ear should have been pierced as soon as he sold himself (and not only when he opted to extend his initial six-year term)?

When the Eved first sold himself, he replies, he did so in a state of poverty, as the Torah writes in Behar, Consequently, his sale was the result of an emergency situation, for which a person is not generally taken to task.

On the other hand, six years later, during which time his master was obligated to sustain him and his family, he must still have a little savings out of the money that he received when he sold himself. Now he can certainly be blamed for the choice to stay on and serve a human master, instead of the Divine one.

See also main article.

"And he shall serve him forever" (ibid.)

Up until the Yovel, Rashi explains (a maximum of fifty years).

And we do indeed find a case where fifty years is referred to as 'forever'. For in Shmuel 1 (1:22), Chanah dedicated her son Shmuel to serve in the Mishkan in Shiloh, as a servant of Hashem forever. Shmuel lived fifty-two years. And if we deduct the first two years of his life, up to the time that his mother weaned him and took him to the Mishkan, from which effectively, he never returned, we are left with exactly fifty years, in fulfillment of the "forever" that his mother had promised.

"If it is bad in the eyes of her master ... then he shall set her free" (21:8).

This means, says Rashi, that the maidservant's master must help her go free by deducting from her sale price.

But what does he deduct, asks the Rosh, seeing as the girl's father is obligated to return the balance between the amount that he received and the number of years early that she is being set free?

The answer lies in the fact that the father deducts from the sale price according to her age and her strength at the time of the sale, even though at that time, she was only a little, inexperienced girl. Now, six years later, she is both considerably older and more experienced. Yet he assesses the value and deducts the difference according to the time that he purchased her, which is considerably less than what she is worth at the time that he redeems her. The difference, the Torah instructs us here, must be borne by the master.

"And if he has not done with her (any of) these three things, then she goes out free, without money" (21:11).

The Torah is referring here, says Rashi, to either performing Yi'ud with her himself (synonymous with betrothing her), or through his son, or sending her out by means of her redeeming herself.

Why does Rashi not interpret the three things as 'she'er, k'sus ve'onah' (sustenance, clothes and marital rights), asks the Rosh, which at first sight, is what the Pasuk seems to mean? If he did, the Torah would be coming to teach us that if, after marrying her, the master does not fulfill his marital obligations towards her, she goes free (from the marriage). However, he replies, the question is based on a misconception. If the Torah authorizes a woman to walk out of a marriage because her husband withheld her marital rights, how could it then write that she walks out free without money? She was after all, his wife, and she would surely require a Get (as well as a Kesubah, according to those who hold that Kesubah is min ha'Torah, and besides, it was customary already then to give a woman a Kesubah, and the Torah would never have negated this custom, based on the man's non-compliance)?

Rashi's explanation dispenses with this problem.

"And someone who strikes his father or mother will surely be put to death" (21:15).

Bearing in mind the principle that the Torah does not sentence a person to death, unless there is an independent Pasuk that serves as a warning, where is the warning against striking one's parents, asks the Rosh?

There is no problem with cursing them, he points out, which the Torah (in the next Pasuk) punishes with death, too. That warning we learn from a combination of the two Pesukim, not to curse 'Elohim' (implying the greatest in Yisrael) and a deaf mute (the least significant), incorporating the whole of Yisrael (including one's parents).But where is the Pasuk that forbids striking them?

That Pasuk, he replies, occurs at the end of Emor, where it writes (24:21) that someone who strikes an animal shall pay, whereas someone who strikes a person shall die. Now just three Pesukim earlier, the Torah obligated someone who strikes "the soul of an animal" to pay.

Clearly, that Pasuk refers to killing it, whereas this one refers to wounding it. Consequently, the end of the Pasuk, sentencing someone who strikes a human-being to death, must also be speaking about a case where he wounds him without actually killing him. And that can only be speaking about striking one's parents, since the penalty for wounding anybody else constitutes financial compensation, and not death.

And that is the Torah's warning against striking one's parents, for which it metes out the death-sentence here.

Interestingly, the Pasuk there, no less than the Pasuk here, is speaking about punishment, and not warning. Yet the Rosh derives the warning from it. Presumably, he relies on the principle often used in Shas 'Im Eino Inyan'. In our case, this means that, seeing as we already have one Pasuk denoting punishment, a second Pasuk to teach us the same thing would be superfluous, in which case it must mean to serve as a warning, which would otherwise be missing.

The death sentence that someone receives for striking his parents is that of 'Chenek' (strangulation), the lightest of the four possible death-penalties. On the other hand, someone who curses his parents is sentenced to 'Sekilah' (stoning), the most severe of them all.

Why is that, asks the Rosh?

And he answers the question in two ways.

1. Bearing in mind that parents are placed on a par with G-d, regarding honouring and respecting them, the Torah is particularly strict with regard to cursing them, because it is something that one can do to G-d (Kevayachol) too. Regarding striking one's parents, which one cannot do to G-d, the Torah is less strict.

2. The Torah takes a more stringent view of cursing parents, because it can be done after death, as well as during their lifetime, unlike striking them, which is confined to their lifetime.

We cited last week, the opinion of the Rosh, who maintains that Yisro actually joined Yisrael at Marah, some six weeks before Matan Torah. Although this explanation answers a number of questions, as we explained, it is difficult to see how the Rosh will explain Pasuk 5, where the Torah relates that Yisro came with Moshe's wife and children, to the desert where he (Moshe) was encamped there, at the Mountain of G-d.

The Ramban, who concludes that Yisro joined Yisrael in Refidim, before Matan Torah, goes out of his way to reconcile that with the above Pasuk. His answer however, will not incorporate Marah, and it is difficult to see any geographical connection between Marah and the Mountain of G-d.

Every member of K'lal Yisrael from the age of twenty and upwards, whether he is poor or rich, is obligated to give half a Shekel (equivalent to the weight of ten 'Geirah') each year, to the Kohanim who serve in the Beis-Hamikdash, as the Torah writes in Ki Sissa (30:13) "This they shall give, all those who are counted".

The Kohanim would place all the half-Shekalim in a room in the Beis-Hamikdash. Subsequently, they would take from it to purchase the Temidin, the Musafin, and all communal sacrifices, together with their Nesachim (drink-offerings), the salt with which they were salted, the wood that was placed on the Ma'arachah on which they were burned, the Lechem ha'Panim, the Omer and the Sh'tei ha'Lechem, the Parah Adumah, and the Sa'ir ha'Mishtalei'ach together with the 'tongue of red wool' (which was tied in part, between its horns).

A reason for the Mitzvah is because G-d wants the good of Yisrael, and to give them all the opportunity of participating equally in the Korbanos that are brought before Him regularly, throughout the year. In this way, everybody, rich and poor alike, will have an equal share in this Mitzvah, and their collective memory will rise before Hashem (together with the smoke of the Korbanos which they have brought before Him, so to speak).

Chazal have said that on Rosh Chodesh Adar, one announces the Mitzvah to donate the annual half-Shekel, which even the poorest of the poor is obligated to give. Someone who has no money, must borrow from a friend or if necessary, must even sell his coat, in order to fulfill the Mitzvah, for so the Torah writes "the poor shall not give less".

The half Shekel, which comprises a silver coin weighing eighty grains of barley (for that is how much a half-Shekel weighed in the time of Moshe Rabeinu), must be paid in one go, and not in installments. Everyone is Chayav to give it - Kohanim, Levi'im and Yisre'eilim, Geirim and set-free slaves. Women, slaves and minors are exempt. Nevertheless, should they volunteer of their own accord, their donation is accepted. One may not however, accept half-Shekel donations from gentiles, who have no portion in our Korbanos.

Chazal have also taught that anyone who, instead of a regular half-Shekel coin, gives pure silver, or other coins to the value of half a Shekel, must add a small fee, known as 'Kalbon'. This is to prevent the person from gaining (at the expense of Hekdesh) the banker's fee that he would have had to pay had he made the necessary transaction to obtain the half-Shekel. Consequently, if two partners pay a whole Shekel between them, they too, are obligated to pay the Kalbon, for precisely the same reason.

This Mitzvah applies only when the Beis-Hamikdash is standing, though it extends even to those who live in Chutz la'Aretz. When it is not, it does not apply, even to those who live in Eretz Yisrael.

Someone who transgresses and fails to give his half-Shekel has negated a Mitzvah. His punishment will be severe, because he set himself aside from the community, and (by his own choice, he) has no share in their atonement.

Nowadays, when due to our sins, we have no Beis-Hamikdash and no Shekalim, it is customary to commemorate the Mitzvah by reading it in Shul once a year, the relevant Parshah at the beginning of Ki Sisa, on the Shabbos that precedes Rosh Chodesh Adar (or the Shabbos on which Rosh Chodesh falls). In addition one gives three coins that carry the title 'half' to Tzedakah.