by Zvi Akiva Fleisher
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SEDRAH SELECTIONS PARSHAS MISHPOTIM 5760 BS"D
Ch. 21, v. 7: "V'chi YIMKOR ish es bito l'omoh" - Compare this with 20:2, "Ki SIKNEH eved Ivri." Why does our verse express itself with the SELLING aspect and verse 2 with the BUYING aspect? The Ohr Hachaim Hakodosh answers that the sale of a female minor can only be done by her father and no one else, hence the stress on who is selling. She cannot sell herself, as she is a minor. When she reaches the age of majority, she cannot be sold at all. Her mother nor the court can sell her as is explained in the gemara Sotoh 23b.
Regarding the father's sale of his daughter the Rambam hilchos avodim 4:2 writes, "A father is not permitted to sell his daughter as a maidservant unless he has become so impoverished that he is left with nothing, not even clothes to cover his body." The Ralbag says that this is derived from the juxtaposition of the laws of selling one's daughter to the laws of one who is sold as a slave because he has no funds to repay the value of the item he has stolen. Likewise a father should not sell his daughter unless he has no funds. The Rambam continues: "After his daughter is sold, if he comes into some funds, the court forces him to redeem her."
The Torah considers the sale of a daughter as a maidservant as an act of rebellion against her, as is stated in verse 8, "b'vigdo voh." Perhaps the choice of the word b'vigdo" alludes to the ruling of the Rambam that he may not sell her unless he is so destitute that he has not to himself a garment to wear. "B'vigdo voh" can be translated as "for his garment through her." He retains clothing for himself only through the sale of his daughter. The Minchoh V'luloh says that by selling his daughter he has betrayed the character of a father to a child, and therefore the Torah does not say "V'chi yimkor OV," - When a FATHER will sell, but rather "V'chi yimkor ISH," - When a MAN will sell.
Ch. 21, v. 12: "Ma'kei ish vo'meis mose yumos" - The Rambam in hilchos rotzei'ach u'shmiras nefesh 1:4 writes that there is no sin as severe as murder, as is written "And you shall not bring guilt upon the land in which you reside because the spilt blood of murder will bring guilt upon the land and the land will not be cleansed of the blood that was spilled in it except through extracting punishment by way of blood of the murderer" (Bmidbar 35:33).
The Rambam in 4:8,9 goes on to say: "If through a technicality the murderer may not be judged for the death penalty, i.e. there was no proper warning beforehand, a contradiction between the testimony of the witnesses in a minor detail, called the "B'dikoh" interrogation process, etc., although the court invoked death of beheading is not exercised, nevertheless the murderer is not let off free. Rather, he is placed into a small cell and fed only limited water and bread until which time his intestines shrink. Then he is fed barley (oats) which has the nature of swelling greatly in one's intestines. His intestines then burst and he dies from this. This is not the case with others being judged for capital punishment. If by some technicality they are not judged to be put to death, although clearly guilty of the crime, they may go free. Why is a murderer judged so harshly? It is not because it is the gravest sin, as even one who was judged for serving idols, if not found guilty by virtue of a minor detail goes completely free. Surely one who has desecrated Shabbos or has committed adultery, which are only sins between man and Hashem does not have this strict ruling. The reason for a murderer being dealt with so harshly is that there is nothing more devastating and destructive to the functioning of society as murder. Whoever is guilty of this sin is a completely evil person and all the merits he has will not outweigh his sin of murder nor mitigate his punishment."
The Rambam counts the processing of the capital cases which have four forms of death penalty, pouring molten lead down the throat, stoning (being pushed down from a height), beheading, and strangulation by way of a kerchief, as four separate mitzvos in the count of the 613 mitzvos. However, the Ramban considers them all as one mitzvoh, the fulfillment of "U'viarto horo mikirbecho" (mentioned ten times in Dvorim between chapters 13 and 24).
Ch. 21, v. 13: "V'ho'Elokim inoh l'yodo" - Rashi brings the gemara Makos 10b which tells us that although one can escape the judgement of the courts, no one escapes the judgement of Hashem. If one were guilty of intentional murder and deserved the death penalty, and another killed someone by accident and deserved to go into exile into a city of refuge, but there were no witnesses for either act, then Hashem will bring about circumstances so that these two people will come together. The one deserving exile to the city of refuge will be climbing a ladder (either downwards or upwards but the rungs of the ladder sag as he steps upon them), and the one deserving death for intentional murder will be below. The man on the ladder will fall upon the murderer in front of witnesses. The murderer will be killed, thus getting his just punishment, and the one who fell upon him will now be forced to flee to a city of refuge.
There is a well-known question raised on this gemara. Since the death penalty due a murderer is beheading and someone falling onto him is a form of stoning, then he received a punishment which was stricter than he deserved, since the mishneh Sanhedrin 7:1 (49b) says that stoning is stricter than beheading.
The Chizkuni answers that the gemara means that the person on the ladder had a sharp blade in his hand and upon falling, accidentally delivered a fatal laceration to the neck of the murderer. He adds that there is no reason to say that he now deserves to go to the city of refuge twice, i.e. waiting until the death of two Kohanim G'dolim until he is free, because the accidental killing of the second person deserves no banishment, as the one who was killed was a murderer and is considered a dead man, "gavro k'tilo kotal."
The Maskil l'Dovid answers that a stricter form of punishment is appropriate. He says that although we derive from the words "Mose yumas hama'keh rotzei'ach hu" (Bmidbar 35:21) that if the court is unable to put the murderer to death with the prescribed form of execution they must kill him by any manner available to them (gemara K'suvos 30b, Sotoh 8b, Sanhedrin 37b, Shvuos 34a), nevertheless, if the execution is a more lenient form of death, the guilty person does not have full atonement. It is obvious that when a person is being judged in a case of a capital punishment offence and is found guilty, that he goes through much mental anguish until he is executed. Not so the person who is suddenly killed. Hashem, in His infinite kindness, wants the murderer to have his sin cleansed fully and therefore visits upon him a more severe form of death to compensate for the lack of anticipatory anguish.
There seems to be a gemara which is contrary to this. The Gemara Sanhedrin 37b relates that Rabbi Shimon ben Shetach saw a person with a knife in his hand running after another person. They ran into an abandoned building with Rabbi Shimon also in pursuit. He did not see the actual murder take place. However, he did see the bloodied knife in the hand of the pursuer and the pursued lying stabbed to death. He said to the pursuer, "Who was the murderer, I or you? However, the Torah states that only through the eye witness testimony of two or three witnesses shall the person deserving death be put to death (Dvorim 17:6). Therefore your judgement cannot be dealt with by the court system. May the One Who knows the thoughts of all humans punish the guilty party."
The gemara then says that they had not parted ways when a venomous snake came and inflicted a fatal bite in the murderer. The gemara asks from a statement of Rabbi Yoseif that although from the time of the destruction of the Beis Hamikdosh the courts did not mete out the death penalty, it was still administered by Heavenly intervention. Whoever deserved one of the four death penalties would get an appropriate punishment. The gemara says that one who deserves death by burning would be punished by being bitten by a snake. The gemara asks, "Since the manner of death for a murderer is decapitation, why was this person bitten by a snake, which is a form of death by burning (which is stricter)?" The gemara answers that that we may assume that this murderer had also committed a crime for which he deserved the death penalty of being burned.
According to the Maskil l'Dovid why didn't the gemara answer that this sudden death by snake venom compensates for the anguish of having a judgement and execution looming upon the guilty party? Possibly, death was not sudden, but excruciatingly painful as the venom slowly made its way through his body.
I am left with another difficulty. If the approach of the commentators is that with the happening mentioned in the gemara Makos 10b a full retribution which is exactly accurate is delivered, then there arises a problem with the man who deserves banishment to a city of refuge. We know that he only remains there until the death of the Kohein Godol. Since he committed his act without witnesses, he has been free for a while and only later goes to the city of refuge. He will end up spending less time there than he would have had he been judged for the earlier accidental killing. A possible answer, although not straightforward: The Kohein Godol died before he accidentally killed the second time. When he now runs to the city of refuge he will be there until the death of the next Kohein Godol. Hashem calculates this and makes it all take place (the second accidental killing and the time lapse until the death of the next Kohein Godol) at a time when he will spend the same amount of time in the city of refuge.
Another possibility along the same lines: Hashem will bring about circumstances that the accidental murderer will not become aware of the passing of the Kohein Godol for the exact amount of time that his judgement was delayed. However, this scenario is very unlikely, as he will have been residing in a city with many other accidental murderers whose main conversation will be, "How's the health of the Kohein Godol?"
Ch. 21, v. 19: "V'rapo y'ra'pei" - The gemara Bovo Kamo 85b derives from these words that permission is given to doctors to heal. The subject matter that follows extends beyond the pursuit of health and healing. It is in no way all encompassing, nor does it come to a clear conclusion. Nevertheless, a panoramic view of the opinions of many Torah commentators will be presented.
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).
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