Vol. 13   No. 18

Parshas Mishpatim
(Parshas Shekalim)

With reference to somebody who has murdered, and who then runs to the Mizbe'ach to escape or delay the death sentence, the Pasuk writes (21:14) "me'im Mizb'chi tikochenu lomus" ('from My Mizbe'ach you shall take him to die'). The Gemara in Yuma (85a) extrapolates from there - "me'im Mizb'chi" ('from [beside] My Mizbe'ach'), 've'lo me'al Mizb'chi' ('and not from on top of My Mizbe'ach'). In other words, the obligation to remove him from the Mizbe'ach and kill him does not apply to a Kohen who is actually performing the Avodah. In his case, Beis-Din will wait for him to conclude the Avodah before taking him away (see Torah Temimah, note 108). The Gemara adds incidentally, that, based on the word "lomus", this latter Halachah only applies to taking him down to have him killed, but if he is required to testify in order save somebody else from the death sentence, then he must stop even in the middle of the Avodah and proceed to the Beis-Din to testify. And from here we learn further, that if saving human life overrides the Avodah, it certainly overrides Shabbos (which is overridden by the Avodah).

Based on the above interpretation of the Pasuk, the Gemara in Makos (12a), comments on the incident where Yo'av, David Hamelech's former general, ran to Shiloh, where the Mishkan stood, and seized the horns of the Mizbe'ach in an attempt to escape the death penalty at the hand of Benayahu ben Yehoyada, whom Shlomoh Hamelech had sent to kill him (for having murdered Avner and Asah'el in cold blood). The Gemara explains that Yo'av erred on three counts: 1. It is only the top of the Mizbe'ach that saves a person from death (as we explained); 2. It is only the Mizbe'ach in the Beis-Hamikdash that saves, and not that of Mishkan Shiloh; and 3. It is only a Kohen who is actually performing the Avodah who is saved, but not a Zar.

The G'ro, following the opinion of the Yerushalmi, explains that the current Pasuk precludes none of the above, but someone who has been sentenced to death on account of a Hora'as Sha'ah (a momentary ruling) or at the hand of the king for treason (and not by Beis-Din [see Rambam, Hilchos Rotze'ach, 5:14]), and we have an example of this in the case of the Amaleki convert, whom David had killed for laying a hand on Shaul, King of Yisrael, by his own admission, without witnesses.

According to the Yerushalmi, says the G'ro, Yo'av did not err at all. Here is what he says:

Yo'av refused to let go of the horns of the Mizbe'ach, he explains, because he believed that Beis-Din did not have the right to kill him, and that it was in his capacity as King that Shlomoh was ordering his removal. In that case, as long as he continued to hold on the horns of the Mizbe'ach, he was acting within his rights, and there was nothing that Benayahu could do about it.

But Benayahu informed Yo'av that in fact, he would be sentenced at the hand of Beis-Din, in which case he had the authority to kill him there and then, so he may as well leave the Mizbe'ach of his own accord (and avoid defiling the Holiness of the location). Yet Yo'av insisted on remaining where he was, prefering to die at the hand of Beis-Din than at the hand of the King. Why?

The G'ro ascribes this to the law that differentiates between the two cases with regard to inheritance. The property of someone who is sentenced by Beis-Din goes to his heirs, just like the property of any other deceased person; whereas that of someone who is sentenced by the King goes to the King. And it was to make sure that his children inherited his property, and not the king, that Yo'av refused to move from the Mizbe'ach. If Benayahu would go ahead and kill him, he decided, it would have to be in his capacity as a Sheli'ach Beis-Din, in which case his heirs would inherit his property.

"And if a man blinds the eye of his slave ...he shall set him free in lieu of his eye. And if he knocks out his slave's tooth, he shall set him free in lieu of his tooth" (21:26/27).

If a man both blinds his slave's eye and knocks out his tooth, says the P'ninim mi'Shulchan G'ro, he goes out to freedom for his eye, and his master is obligated to pay him for the loss of his tooth.

With this we can understand the Mishnah in Bava Kama (3:10), which rules that one is exempt from paying for damages performed by one's ox, but liable where the same act is performed by a person. And the Mishnah speaks where he or his ox blinded his friend and knocked out his tooth, where he is liable for the former, but exempt for the latter. If Chazal meant that either they blinded the slave's eye or knocked out his tooth, and in the former case, the slave simply goes free, then the term 'liable', (which implies a monetary obligation), would not be appropriate. The Tana must therefore be speaking of a case where the animal and the master, respectively, both blinded the slave's eye and knocked out his tooth. And what the Tana is teaching us is that where the latter performs both, the slave goes free for the first act, but the master is obligated to pay for the second.

Ibid.

The Gemara in B'rachos states that suffering cleanses a person from his sins, 'kal va'Chomer from tooth and eye'. Because if one limb can take a person out of slavery, how much more so can suffering, which affects the entire body!

The question arises, says the P'ninim mi'Shulchan G'ro, why the Tana lists both tooth and eye, when one of them would have sufficed?

The reason that a slave goes free with 'Shen ve'Ayin', he explains, is because of the curse that No'ach issued to his grandson. This in turn, was the result of the Pasuk which informs us that a. Cham saw his father naked, and b. that he went and told his brothers what he had seen. As a result, No'ach sentenced that branch of his family to eternal slavery. Once however, the master knocks out the slave's eye (corresponding to what Cham saw) and tooth (corresponding to what he told his brothers), his atonement is complete. Strictly speaking, he ought only to go free if his master wounds both limbs, just as they both worked in tandem when Cham sinned. However, G-d took pity on the slave, and allowed him to go free for just one of them.

And when Chazal refer to 'Shen ve'Ayin', they were referring to what ought to have been, in which case the 'Kal-va'Chomer' is learned from both, irrespective of the fact that he now goes free for eitherof them.

"When you lend my people, the poor man who is with you ... " (22:24).

The Gemara in Bava Metzi'a (75b) informs us that one of the three people whose pleas G-d ignores is someone who has lent a fellow-Jew money without witnesses. Common sense (as well as Halachah) dictates that a loan requires witnesses, so that the borrower cannot later deny that the loan took place, or dispute the amount that was involved.

Tzedakah on the other hand, should be given discreetly, and the less people who know about the gift the better, as the Pasuk writes in Mishlei (21:14) "A gift given discreetly, quashes (G-d's) anger".

This distinction, says the G'ra, is hinted in the current Pasuk "When you lend ... My people" (it should be done in the presence of two witnesses ['Plural denotes at least two']). "The poor man" (but when you give Tzedakah) ... "with you" (singular), nobody else should be present.

"And flesh that is in the field (and that is) T'reifah you shall not eat. Throw it to the dogs"(22:30).

The Gemara in Pesachim (22a) extrapolates from the word "it" ('Oso') - "it" you shall throw to the dogs, but not Chulin that have been Shechted in the Azarah (i.e. they do not become forbidden to eat).

The G'ro points out that according to Chazal, the current Pasuk refers to the flesh of Kodshim that left the Azarah. It therefore transpires that the Pasuk and the inference are referring to exactly opposite cases - to Kodshim that left the Azarah and Chulin that was brought into the Azarah, respectively.

"Keep far away from lies" (23:7).

The Gemara in Bechoros (8) cites a strange dialogue between the elders of Athens and R. Yossi b'R. Chanina. They asked him to tell them a lie. Then, when he told them about a mule that gave birth, they retorted 'Since when does a mule give birth?' To which he replied 'There you have a lie!'

The elders' initial request, and then their response to R. Yossi's statement are both puzzling. Firstly, what's the Chochmah (big deal) in telling a lie. And secondly, having asked him to tell them a lie, why did they query him when he did?

The P'ninei Torah cites the following explanation that he once heard:

The world at large believes that lying is wrong, because of the harm that it causes to the various parties connected with it. A lie that is so blatant that nobody will believe it anyway is harmless, and as such, is quite acceptable. Our tradition disagrees with this however. The Torah, which is itself described as 'Torah Emes', does not tolerate lies in any form, irrespective of whether they cause harm or not.

What the elders of Athens asked R. Yossi b'R. Chanina was to define 'a lie'. To which he gave the example of a mule that gave birth. They retorted however, that since that is so obviously false that it is harmless, it does not fall under the category of a lie.

To which he replied that, according to the Torah's definition, this too, is a lie.

"And Moshe and Aharon, Nadav, Avihu and the seventy elders of Yisrael ascended (Har Sinai). And they saw the G-d of Yisrael (Kevayachol) ... " (24:9/10).

It is written in Maseches Sofrim (in connection with the great man among the giants, Avraham Avinu) that he ate as much as seventy-four men. A strange Medrash!

The G'ro explains that when Avraham ate, he rectified (in the upper worlds [with his holy thoughts]) no less than the seventy-four men mentioned in the current Pasuk - when they 'saw G-d' on Har Sinai.

Alternatively, the Medrash is not referring to Avraham Avinu's achievements when he ate, but to the level of Ru'ach ha'Kodesh that he attained.

The Gemara in Pesachim (59b), commenting on the Pasuk in Tetzaveh (29:33) "And the ones who are atoned for shall eat it", explains that when the Kohanim eat the sections of the Kodshim brought by Yisre'eilim that are designated to them, the owner's atonement comes into affect. Chazal further explain that it is through the medium of eating Kodshim that the Kohanim merited Ru'ach ha'Kodesh, according to the level of the Korban - Kodshei Kodshim or Kodshei Tzibur.

And that, he explains, is what happened here at Har Sinai. After Moshe, Aharon, Nadav and Avihu, and the seventy Elders had eaten Kodshei Kodshim and Kodshei Tzibur, the Torah records that "they saw G-d". Avraham Avinu too, when he ate, says the Medrash, merited Ru'ach ha'Kodesh, like the seventy-four men.

"This (Zeh) they shall give ... half a Shekel" (30:13).

The Yerushalmi citing R. Yochanan ben Zakai, learns from the word "Zeh" (whose numerical value is twelve), that all the twelve tribes, including the tribe of Levi (incorporating the Kohanim) are obligated to donate a half-Shekel annually, with which to purchase the Korbanos (to preclude from the opinion that exempts them).

The very next Pasuk writes "All those who pass by the counted ones from twenty years and onwards", apparently exempting both the Levi'im (who were not counted from the age of twenty) and the Kohanim (who did not pass before Moshe, since it was Moshe who went to their tents to count them). Yet there too, the Yerushalmi interprets the Pasuk to mean "All those who crossed the Yam-Suf", thereby including them in the Mitzvah.

The opinion in the Yerushalmi that precludes (indeed disqualifies) them, is that of ben Buchri, who precludes the Kohanim from donating the half-Shekel because of the fear that they may not hand over the money to the community with a full heart, in which case the public Korbanos will have been purchased with private money, which is forbidden. R. Yochanan ben Zakai is not worried about that.

Ibid.

Commenting on the same word "Zeh", Rashi explains that G-d showed Moshe a coin of fire and told him that this is what Yisrael shall give.

Tosfos in Menachos (29a) asks why the Gemara, which lists the things with which Moshe had difficulty, and which G-d subsequently pointed out to him, omits the half-Shekel of fire.

In fact, the Torah Temimah explains, the Yerushalmi there cites this opinion too, in the name of R. Meir, adding that it has Halachaic ramifications. Because G-d insisted that this is what they have to give, it became necessary to make sure that the half-Shekel that they gave each year should not be smaller than the coin that G-d showed Moshe. Consequently, in later times, whoever donated his annual half-Shekel, had to add a little to ensure that he did not diminish from that original half-Shekel coin.

Since we do not follow the opinion of R. Meir, the Torah Temimah concludes, it is not surprising that the above Gemara does not include the half-Shekel in the list of things that G-d showed Moshe.

"All those who pass by the counted ones, from twenty years and onwards, shall give the gift for Hashem" (30:14).

Both the Rambam and the Ramban are of the opinion that the obligation to give a half-Shekel begins at the age of thirteen (just like all other Mitzvos). To be sure, they maintain, the Pasuk specifically gives the age as twenty. But that refers to the (once only) donation with which they manufactured the sockets for the Mishkan. But as far as the annual donations for the Korbanos is concerned, we rely on the previous Pasuk ("This they shall give ... "), which makes no mention of age. The Bartenura on the other hand, writes in Shekalim (1:3) that the Mitzvah only begins at the age of twenty (as is implied in the current Pasuk). The Tos. Yom-Tov queries the Bartenura on this point, but he fails to mention that the Seifer ha'Chinuch, the Rokei'ach and the G'ro, with whom the Bartenura concurs, and what's more, according to the G'ro, this is actually the opinion of the Yerushalmi.

This Machlokes, says the Torah Temimah, has ramifications, with regard to the Musaf Tefilah.

The Besamim Rosh (attributed to the Rosh) exempts women from Davenning Musaf, since unlike the other Tefilos, Tefilas Musaf commemorates the Korban Musaf, and since the Korban Musaf was purchased from the half-Shekalim, which women were exempt from donating, women had no share in it. Bear in mind also, that it is forbidden to volunteer to Daven Musaf, as one may the other Tefilos.

That being the case, according to the Bartenura and the Rishonim with whom he concurs, anyone between the ages of thirteen and twenty, who was exempt from donating the half-Shekel, is also exempt from Davening Musaf, and it goes without saying therefore, that he cannot act as Chazan for Musaf, to render the community Yotzei. According to the Rambam and Ramban, he is obligated to Daven Musaf, just like everybody else

The Ramban wonders why the great Poskim do not list the prohibition of a rich man giving more than half a Shekel, and a poor man, less, among the six hundred and thirteen Mitzvos?

To answer the question, the Torah Temimah cites the Gemara in Zevachim (66a), which explains the Pasuk in Vayikra (in connection with the bird Chatos) "ve'lo yavdil" to mean, not that one is forbidden to sever the head, but that it is not necessary to do so. In that case, asks the Gemara, when the Torah writes "ve'Chi yiftach ish bor ve'lo yechasenu", does the Torah also mean that he is not obligated to cover the pit that he opened? Tosfos explains there that the Torah asks from 'bor' and not from other La'avin, such as "Lo sachsom shor ... " and "Lo sochlu kol neveilah", because, regarding all other La'avin, why did the Torah write them if not as a command? "ve'Lo yechasenu", on the other hand, the Torah needs to write, because we would have otherwise thought that he is obligated to cover the pit that he dug, which suggests that what the Pasuk means is that he does not need to (just like "ve'Lo yavdil" comes to teach us that the Kohen does not need to sever the head, because, if not for the Pasuk, we would have thought that, since the blood is needed to sprinkle on the Mizbe'ach, one should sever it).

It emerges from Tosfos that wherever logic dictates that one acts, the La'av teaches us that it is not necessary to do so (to avoid having to say that the Pasuk is ordering us to behave illogically).

In that case, we can answer the Ramban's Kashya in the same way. Logically speaking, a rich man ought to pay more and a poor man, less. Consequently "ha'Ashir lo yarbeh, ve'ha'dal lo yam'it" must be coming to teach us that they are not obligated to do so, but not as a prohibition.