by Zvi Akiva Fleisher
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SEDRAH SELECTIONS PARSHAS MISHPOTIM 5764 BS"D
Ch. 21, v. 1: "Asher tosim" - That you shall place - The word "tosim" is an acronym for "Tishma Shnei'hem Yachad M'dabrim." You should hear both litigants speaking at the same time. This alludes to the prohibition against hearing out one litigant when the other is not present. (Leiv Ovos)
Ch. 21, v. 1: "Lifnei'hem" - In front of them - The antecedent of the pronoun "them" is the judges appointed by Moshe as per the advice of Yisro, mentioned in the previous parsha. (Rabbeinu Saadioh Gaon)
Ch. 21, v. 8: "Im ro'oh b'ei'nei adone'e'hoh" - If she is found bad in the eyes of her master - The cantellation on the word "ro'oh" is "geirshayim." This alludes to what one should do when he finds that his wife is extremely bad. "Geirshayim," he should divorce her, "geirushin." (Hadoroh Shel Torah)
Ch. 21, v. 9: "K'mishpat habonos yaa'seh loh" - As is the ruling for the daughters he shall do for her - Baa'lei Tosfos say that this means that he should write her a "ksuvoh." Chizkuni says this means that he is required to make as festive and elaborate a wedding for her as he would for a girl who was never enslaved.
Ch. 21, v. 10: "Sh'eiroh ksusoh v'onosoh" - Her food her garment and her conjugal relations - This is the translation according to Rashi. Others say that "sh'eiroh" means conjugal relations, as "sh'eir" means that which is left over. A person leaves over his children after his death. Some say that "onosoh" means a home, as in the word "m'one."
Ch. 21, v. 10: "Ksusoh .. lo yigro" - Her garment .. he shall not withhold - A person who had limited funds came to his Rabbi a few days before Sukos with an esrog that he wanted to purchase. He was seeking the Rov's approval of the esrog, saying that in his own opinion it was flawless, adding that it cost a small ransom. The Rov responded that his money would be more wisely spent if he bought a basic kosher esrog and spent the rest of the money for a nice dress for his wife for Yom Tov. (Rabbi Menachem Safra)
Ch. 21, v. 11: "V'im shlosh ei'leh lo yaa'seh loh" - And if he does not do any of these three things for her - Rashi says that this means that he neither took her for himself, nor for his son, nor did he accept a pro-rated reduced redemption price for her emancipation. How does Rashi know that this does not refer to the three responsibilities enumerated in the previous verse after she was taken as a wife? The answer is that our verse ends with "v'yotzoh chinom ein ko'sef," she is to be sent free with no payment required. "Chinom" also indicates that she just goes free with no writ required. If she was married either to the master or to his son, it is obvious that she would require a writ of divorce, a "get." (Daas Z'keinim)
Ch. 21, v. 19: "V'nikoh hama'keh" - And the assailant is cleared - The previous verse tells us that if the injured person dies, his assailant is put to death. Our verse says that if the injured person is on the mend the assailant is cleared. This cannot mean that he is cleared of the death penalty, as there is no need to tell us this, as we would know on our own that if murder was not committed there is no death penalty. Rather, "he is cleared" teaches us that the assailant is incarcerated and we wait to see what happens to the injured person (Rashi, Mechilta).
The Mechilta adds that we might think that the assailant has the right to have guarantors sit in jail in his place, or that he offer bail, and is immediately freed, but since the Torah says "If he will stand up and walk outside even with the support of his cane," we derive that the assailant is only freed when the victim improves and is out of danger of dying.
The Rivo"sh in his responsa #236 explains that if the assailant fears that his victim will die and he would be put to death, it is obvious that he will run away. There is no logic in administering any punishment to his guarantors, since they did nothing wrong. Likewise, he will surely jump bail because if he feels that there is a good chance that he will be put to death, the loss of even a fortune would not stand in the way of his running away. Therefore there is no alternative but to keep him under lock.
Rabbi Shimon Diskin writes that incarceration is not to be viewed as a medium that allows us to carry out the death penalty if it becomes necessary, but rather, a penalty administered by the court, just like lashes or another corporeal punishment. He cites the Ram"o on Ch.M. #339:4 who says that we do not incarcerate a person on Shabbos even if we realistically fear that he will escape. If this is a court imposed punishment this makes sense, as the court does not administer punishments on Shabbos. If this is just a medium to guarantee that he will not run away, then it would be permitted to lock him up even on Shabbos. Another proof is from the GR"A's commentary on Toras Kohanim parshas Emor #12 on the words "va'yanichuhu bamishmor" (Vayikroh 24:12). They put the blasphemer in confinement, but not the Shabbos desecrator. The GR"A explains that this is because we do not judge two people for the same punishment in one day. Again, we clearly see that incarceration is a court imposed punishment, and not just a practical strategy to insure his not running away.
Ch. 21, v. 19: "V'rapo y'ra'pei" - The gemara Kidushin 82a says "Tove sheb'rofim l'Gehinom," - good in doctors to Gehinom. This has many interpretations. I have heard the following: When a person goes to a doctor to heal a disorder, if all goes well, fine. If however, his condition deteriorates he often seeks numerous other opinions. The other doctors always ask for a complete report of the first doctor's findings. Even if they disagree with either his diagnosis or course of treatment, they are very reluctant to say that he was totally wrong, as they in the future will likewise be on the receiving end of a "second and third opinion." This can even lead to the death of the ill person. Their saying "good" to the diagnosis/treatment of the first doctor makes them deserving of Gehinom.
Ch. 23, v. 4,5: "Ki sifga shor OYIVCHO, Ki sir'eh chamor SONAACHO" - If you will happen upon the ox of your enemy, If you will see the donkey of your enemy - We find a change in the wording of these two cases. In verse 4, which discusses returning a lost item, the term "oyivcho" is used, while in verse 5, which discusses helping unload an overburdened animal, the term "sonaacho" is used. I have listed numerous opinions on the difference between these two words in an offering on the Meshech Chochmoh on Tisha b'Ov. All three Targumim on our verse use the word "sanach" for either word.
Rabbi Klonimus haKohein, father of the Meshech Chochmoh, answers that a "so'nei" is one who only harbours hatred, but an "oyeiv" is one who wants to kill, as the verse says "yiradofe oyeiv nafshi" (T'hilim 7:6). There is the fear that during involvement with unloading, the "oyeiv" might kill the helpful person, therefore he should not help a "sonei" unload his beast. It seems that he feels that when returning a lost item there is no such fear, as the finder is not as involved when handing over the lost item and will protect himself. The N'tzi"v in Haa'meik Dovor writes that when the Torah mentions both "oyeiv" and "sonei" together, the word "sonei" means one who only harbours hatred in his heart, while "oyeiv" means one who has so much hatred that he will surely give you a mouthful of scorn. One might otherwise have thought that he is not required to return a lost item at the cost of receiving verbal abuse. He does not explain why "oyeiv" is used specifically by returning a lost item, and "sonei" by unloading. Perhaps it is because there is a greater likelihood that one will receive a stronger, lengthier mouthful of abuse in the privacy of a home, the usual setting for returning a lost item, than in the street, where one helps unload a beast of burden.
Alternatively, the one who comes to claim his lost item comes into your home. He is afraid to attack because he does not know what weapons you have with you in your home. Not so when attacking on the road. Another factor: Since the "oyeiv" enters the home of the "meishiv a'veidoh," if he is found murdered the "oyeiv" can readily be connected to the crime. Not so on the road; he might kill where no one is present and disappear.
The GR"A in A'derres Eliyohu on Dvorim 32:35 says that an "oyeiv" is an enemy who is one's adversary regarding material matters, while a "sonei" is an enemy regarding spiritual matters.
Perhaps we can thus explain the difference. The Torah tells us that we should return a lost item even to one who hates us because of our physical success, an "oyeiv." By not helping to unload we are not causing a definite loss, as the donkey might very well survive with no negative affects. By not returning a lost item the loser surely has a loss, and the finder has a definite gain. Even here the Torah requires us to return the item.
Alternatively, only to an "oyeiv" are we to return a lost object. As mentioned earlier, a lost object is usually safe-kept in one's home. An "oyeiv's" object may be returned in the privacy of one's home. A "sonei," a person who harbours spiritual hatred, might attempt to proselytize in this private setting, so you should not return his lost item.
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