Vol. 17   No. 18

Parshas Mishpatim

The Torah deals with two kinds of Eved Ivri. One is a thief who is unable to pay back what he stole. Beis-Din therefore sell him, to enable him to repay his debt. The other is somebody who, due to having done business with Sh'mitah produce, finds himself unable to make ends meet. He therefore sells himself so that the money he receives will ease his financial situation. Should the master so wish, he has the authority to give his servant a Shifchah Cana'anis (a non-Jewish slave-girl) to live with. Any children that are subsequently born to them adopt the status of their mother; they are slaves and do not go free together with their (biological) father. However, this Din is restricted to a servant who is married when he is sold. As the Torah clearly states, "If he comes in single, he goes out single (without being given a 'slave-girl with whom to live)".

Both categories of Eves Ivri initially work for their respective masters for six years and then go free. Should they however, express a desire to continue working, because, as they inform us, they love their master, his (slave-girl) wife and children, then they may remain with him until the Yovel year, at which point the master is obligated to release them. But not before he has stood his servant against the doorpost, and bored a hole through his ear into the doorpost with an awl.

Rashi asks why the Torah singles out specifically the ear. Citing Raban Yochanan ben Zakai in the Mechilta, he gives two separate reasons for the two categories of servants. Both categories of servant heard G-d's commands at Har Sinai, says the Tana; the one heard the prohibition of stealing, the other, the unambiguous statement that Yisrael are servants of G-d, and not of anybody else. Yet the one went and stole, whilst the other acquired a human master over and above G-d!

For that they deserve to have their ears pierced.

The K'li Yakar masterfully explains each of the two above issues. He offers an explanation as to why the Torah restricts the Din of a Shifchah Cana'anis to an Eved Ivri who came in single; and he answers the popular question as to why each of the above Avadim have their ears pierced only prior to their second term of servitude, and not before they begin their first term or even earlier, the one for having stolen, the other, for having sold himself.

He bases the answer to the first question on the fact that the Torah clearly frowns on the Eved's decision to remain in the employ of his master, and will do whatever is necessary to discourage it. That being the case, he explains, an Eved who comes in single is far more likely to opt to remain with his master for an extended period, since he considers the Shifchah Cana'anis to be his only wife, and he will be most reluctant to part with her - so the Torah forbade his master to give him one; If he has a wife and children at home on the other hand, the attraction to the Shifchah is bound to be much less magnetic, and that is why the Torah permits him to have one.

To answer the second question, the author first cites the famous principle, that the Torah never issues two punishments for one sin ('Kom leih bi'de'rabah mineih').

Consequently, seeing as a thief who is able to pay double must do so, and one who is not is sold for six years, there is no room for the additional punishment of the ear-piercing ceremony. And it is only after the eved has demonstrated retroactively that he does not consider servitude to be a punishment by insisting on remaining an eved up until the Yovel, that the Torah teaches him a lesson by having his ear pierced.

Whereas the servant who sold himself, has not yet earned himself a punishment. He did not sell himself out of choice, but due to difficult financial circumstances. And it is only when of his own free choice he declines to go free, willingly acquiring for himself the jurisdiction of others over himself, that the Torah orders his ear to be pierced.

It is only at this stage that the Torah sees fit to remind them of what they heard at Har Sinai - the one, the Pasuk "Do not steal!" and the other, the Pasuk "For B'nei Yisrael are My servants!"

The K'li Yakar goes on to explain why the Torah chose specifically the door and the doorpost against which to pierce the servant's ear. He explains how the Torah left the door open for him to go free; the door swivels on its hinges, he says, but the servant declines to grab the opportunity. He has chosen for himself the imaginary advantages of the good food and drink that he receives in his master's house; that is why he leaves the door wide open and refuses to leave. It is only right that his ear is pierced against the door-post which contains the Pasuk "And you shall love your G-d", whilst he announces how much he loves his 'wife' and children, thereby substituting the love of G-d for the love of his slave-girl wife.

Furthermore, he adds, every free man has the opportunity of fulfilling the Pasuk in Mishlei (8:34) "To hasten to My doors (of the Beis-Hamedrash) each day, to the door-posts of My entrances. But this man hastens to his master's doors. He removes his ears from listening to the Voice of G-d to hasten to His doors; That is why his ear must be pierced against the door and the door-post.

Rabeinu Bachye refers to the sign of the blood on the doors, when Yisrael placed the blood of the Pesach on the lintel and on the door-posts of their houses the night before leaving Egypt. This was a symbol of their departure from slavery to freedom the very next morning. The Eved Ivri has turned his back on the freedom he has been offered. That is why his ear is pierced beside the door post until blood flows from it, 'Midah ke'Neged Midah'.

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

R. Bachye cites the Gemara in Yuma (72:), which commenting on the Pasuk in the second paragraph of the Sh'ma "ve'Samtem es devorai eileh … " (And you shall place these words - of Torah - on your heart … "), explains that Torah is a 'Sam', a balm of life if one adheres to it, and a poison if one doesn't. Likewise, he explains, when the Torah uses the word "tosim" in connection with judgements, it is hinting that if a judge adjucates fairly and wisely, Mishpatim will be for him a balm of life, whereas if he perverts justice, then they will be a poison and bring about his untimely death.

"And these are the judgements … when you purchase a Jewish servant …" (21:1/2).

The Torah opens the Parshah of Mishpatim with the Dinim of an Eved Ivri, because they are reminiscent of both the Exodus from Egypt and the Creation of the World. They remind us of the Exodus, inasmuch as Yisrael were slaves to Par'oh in Egypt, until G-d took us out and transformed us into His servants exclusively, as the Pasuk writes in Behar (25:55) "Because Yisrael are servants to Me; they are My servants, whom I delivered from the Land of Egypt" (see Main article).

And they remind us of the Creation, in that just as G-d created the world in six days, and 'rested' on the seventh, so too, must an Eved Ivri work for six years, and rest (i.e. go free) on the seventh.

For all the sevens are special, writes the author; the seventh day (Shabbos), the seventh year (Sh'mitah) and the seventh year of the seventh cycle (Yovel).

"When a man steals an ox or a lamb and either Shechts or kills it, he shall pay five cattle instead of the ox and four sheep instead of the lamb" (21:37).

To explain why the Torah confines this ruling to an ox and a lamb, as well as the significance of the respective 'five'' and 'four', R. Bachye cites a Medrash. 'Because we 'stole' an ox (from under the Kisei ha'Kavod) and we made a Calf, therefore "five cattle he shall pay instead of the ox" - that is why our fathers died in the desert on account of it; "and four sheep instead of the lamb" - because we stole Yosef (and sold him into slavery), that is why we had to 'pay' by spending four hundred years as slaves in Egypt, and that is why four nations subsequently ruled over us in the course of history.

When the Medrash talks about our fathers dying in the desert, says the author, it is presumably referring to the three thousand people whom the B'nei Levi killed following the episode of the Golden Calf, plus those who died in the plague that occurred at that time. However, since the Medrash specifically mentions the five cattle he concludes, the Medrash must be referring to the five punishments that Yisrael received on account of the sin of the Golden Calf - 1. Death by the sword at the hands of the B'nei Levi; 2. A plague at the hands of Hashem; 3. Their faces turning yellow, when Moshe examined them like Sotos, when, after grinding the Calf into dust, he scattered it on the surface of the water and made the people drink it; 4. The destruction of the Beis-Hamikdash; 5. That whenever Yisrael sin and deserve punishment, G-d adds a little of the sin of the Eigel on to the punishment.

"If a man permits his animal to eat from somebody's field … the best of his fields and the best of his vineyards he shall pay" (22:3\4).

The Gemara in Gitin (48:) rules that one may claim damages (incorporating theft) from 'Idis' (the best of the damager's property). The reason for this, R. Bachye explains, is because were one to claim from medium or inferior-quality fields, then people would allow themselves to steal their fellow-Jews' best-quality goods, knowing that, if they were caught and placed on trial, they would only need to pay back medium or inferior quality lands. Therefore the Torah obligates them to pay with their best, thereby discouraging them from stealing in the first place.

The Gemara adds there that a debtor, on the other hand, pays from 'Beinonis' (middle-quality property), whereas a woman can claim her Kesubah only from 'Ziburis' (the husband's worst-quality fields).

As a matter of fact, by Torah law, a debtor too, is permitted to pay from his worst-quality fields, as the Torah writes in Ki Seitzei (Devarim 24:11) "You shall stand outside, and the debtor will bring out to you the security", giving the debtor the right to bring out whatever he wants to give as a security, even Ziburis. And this indicates that a debtor may always pay his debt from Ziburis. Only Chazal instituted that he pays from Beinonis, to avoid 'closing the door' on his chances of obtaining a loan, as creditors will stop lending money, if they know that, in return, they stand to receive only Ziburis.

Chazal did not however, find it necessary to extend the above institution to a woman's Kesubah, since based on the adage that 'A woman wants to get married even more than a man', they knew that they will not refrain from marrying, even if, eventually, their Kesubah will only consist of Ziburis. So the Torah-law remains intact, and they can only claim from Ziburis.

" … she (a Jewish maidservant) will not go free like slaves go free (ke'tzeis ha'avadim) 21:7, The word "ke'tzeis" also appears in Parshas Ki Sissa (33:8) "And it was, when Moshe went out (ke'tzeis Moshe) to the Ohel Mo'ed", and in Seifer Shoftim (5:31) " … and His beloved ones are like the sun when it comes out (ke'tzeis ha'shemesh)". Hence, says the Ba'al ha'Turim, Chazal's statement 'Moshe's face resembles that of the sun!'

And it also hints at the ruling that a labourer goes out (to work) in the employer's time. By this they mean that although the Torah's working hours for an employee begin with sunrise, it is not necessary for him to leave home early, in order to arrive before sunrise and to begin working at sunrise; but rather that he leaves home at sunrise, and begins working when he arrives at the workplace. And this is hinted in the comparison between the Avadim going out (leaving home in this context) to the sun coming out.

" … he may not rule over her to sell her, thereby dealing with her treacherously (be'vigdo boh) 21:8.

The same word appears in Veyeishev (39:12) "And she seized him by his garment (be'vigdo).

This explains the opinion of R. Eiezer, says the Ba'al ha'Turim, who (interprets the word literally as 'garment' and who therefore) says in Kidushin that 'Once the father has spread his garment over his daughter (i.e. taken her under the Chupah), he is no longer permitted to sell her.

However, he adds, R. Akiva too, who translates it as above, also learns it from Yosef. In his opinion, the Ba'al ha'Turim explains, Yosef returned to the house with the intention of sinning with his mistress (a treachery to his father's ideals), and it was only when the image of his father appeared to him that he managed to fight off the temptation.

" … then she leaves his house (ve'yotz'oh mi'beiso) to freedom … " (21:11).

Here too, the Ba'al ha'Turim cites one other location where the word ve'yotz'oh is to be found - in Ki Seitzei (24:2), where the Torah writes (in connection with divorce) " … and she leaves his house (ve'yotz'oh mi'beiso), and she goes and marries another man". The Torah is comparing a maidservant to a married woman, in that just as one 'acquires' a woman by means of a sh'tar (a document), so too can one acquire a maidservant by means of a sh'tar.

" … without having to pay anything (ein kasef)". Ibid.

The Gematriyah of "ein kasef", says the Ba'al ha'Turim, is equivalent to that of 'be'simanim' (with signs of puberty), which remarkably, Chazal learn from the fact that "Ein Kasef" is otherwise superfluous.

And the reason that the Pasuk juxtaposes this phrase to the Din of somebody who strikes a man and kills him, is to teach us that, due to the principle 'Kam leih be'de'rabah mineih' (a person receives the stricter of two punishments but not both), the culprit is sentenced to death, but is exempt from paying any damages that he may have caused with the same stroke.

It is forbidden to eat any part of the flesh of an Olah as the Pasuk writes in Parshas Re'ei (12:17) "You are not permitted to eat … or any Neder (Korban) that you made". The Gemara in Makos (17a) explains that "Nedorecho" refers to a Korban Olah, and that the Pasuk is coming to teach us that anybody who eats a (k'zayis of) Olah, both before its blood has been sprinkled and afterwards, both within the hangings of the Courtyard and outside, has transgressed a La'av. Chazal also say that this La'av serves as a warning to whoever benefits from Kodshim (known as Me'ilah). The author has already discussed the details of Korbanos, and what is to be gained by burning animals in Hashem's Great House, in Parshas Terumah (in Mitzvah 95 - the Mitzvah to build the Beis-Hamikdash). The Prohibition of not eating from them (Burnt-Offerings) but only to burn them is for the same reason; it is a Mitzvah that is confined to a Korban Olah, whose Mitzvah is specifically to be burned. And included in the Mitzvah is the prohibition of deriving any benefit (other than what the Torah prescribes) from all Kodshim, as the author explained.

The Dinim of the Mitzvah are discussed in Maseches Me'ilah and in other places in Seider Kodshim.

This Isur applies everywhere and at all times, to both men and women; even somebody who declares an animal an Olah nowadays is forbidden to eat from it. Whoever contravenes it and eats meat from an animal that has been declared an Olah or from any other Kodshim animal has been Mo'el and is subject to Malkos for doing so be'Meizid (on purpose), provided there are witnesses and warning present when he transgressed, as is well-known. In the event that he transgressed be'Shogeg (inadvertently), then he is obligated to bring a Korban Me'ilah (an Asham), and to return what he ate and to add a fifth, as is explained in Masechta Me'ilah.