פרשה: משפטים · עלייה: שני (גבורה)

בשבט, with a rod, etc. Maimonides writes in chapter 2,14 of Hilchot Rotzeach: "I believe that the word "rod" is to be taken literally. If the master hit the slave with a knife, a sword, a stone or a fist, or something similar, and the court judged that the slave would die from the result of such an attack even after a full year, the master is subject to execution." I do not understand why the master should be executed if he used an instrument which is normally not lethal if the victim did not survive for 24 hours. In such a situation the assailant is not guilty of the death penalty even if he struck a person who is not his slave, i.e. not his personal property. I believe that the reason the Torah writes בשבט with a rod, is that if the master's actions prove that all he wanted to do was to discipline his slave, something normally done with a rod, G'd allowed him a 24 hour period before he would be considered guilty of murder seeing that the slave is his personal property and one does not destroy one's personal property on purpose. If the instrument used to inflict fatal injuries on the slave was one that is not normally employed when one wants to discipline someone but a weapon used when one is about to kill a person, such as stabbing the slave in his belly with a sword, the Torah does not grant the master a reprieve of 24 hours during which survival of his slave may save him from a murder charge. He will be guilty of murder even if death occurs a year after the stabbing, for instance.

לא יקם כי בספו הוא, he will not be avenged for it was his own money. If he killed the slave unintentionally (in the accepted sense of the word), the master will have to be confined in a city of refuge on account of this. In this ruling there is no difference between putting to death of one's slave or some other human being. Exile is applicable only if one killed directly, in accordance with the definitions we outlined in verse 12. The Torah only needed to write in which respect the law of a master killing a slave is different from someone who kills a person who is not his slave.

וכי ינצו אנשים, And if men strive together, etc. In this case each one is presumed to have murderous intent. It happpened that instead of killing his adversary the potential killer struck the woman (either fatally or otherwise).

ונגפו אשה הרה, and they hurt a pregnant woman; the reason that the Torah uses the plural, i.e. "they hurt," is to inform us that if they both fell upon the woman thus causing her to lose the fetus they divide the compensation the woman has to be paid between them (compare Maimonides Hilchot Chovel Umazzik).

אשה הרה, a pregnant woman, etc., the scenario is one where the woman had been present and both parties were aware of this. If the woman's presence was unknown to the parties involved in the fight, they are not guilty of any compensation. This is based on the Talmud Yerushalmi and stated explicitly in Maimonides chapter 1 of Hilchot Chovel Umazzik. Here is his wording: "If one of the parties was asleep and the other party lies down beside him, the sleeping party is free of any guilt [if his motions cause the death of the second person, Ed.] seeing that whatever harm he caused was totally accidental."

כאשר ישית עליו בעל האשה, in accordance with what the woman's husband will impose upon him. The reason for this ruling is that the husband has the prerogative to receive compensation for the monetary value of his wife's children (such as when he sells his daughter). As a result, he is considered the litigant against the guilty party and not the mother of the unborn child.

ונתתה נפש תחת נפש, "you shall give life for life." The meaning of these words is disputed. The Mechilta quotes opinions according to which the Torah speaks of an actual death penalty even though the killer had intended to kill another party, whereas other sages hold that the Torah speaks of monetary compensation for such a life (unborn child). According to the latter opinion the words ונתתה, "you shall give," are most appropriate seeing that monetary compensation is something that is given from one hand to another. According to the opinion that the Torah speaks of an actual death penalty, we must understand the word ונתתה as contrast to the situation described in verse 22 when no fatality occurred; instead of monetary compensation for the injury described in verse 22, something involving several types of payments such as for pain, shame, etc; in this instance there is only one exchange, i.e. the life of the guilty party for the harm done. We have learned previously that whenever a party is guilty of the death penalty no additional fines are imposed. The exception is a situation we have described in verse 18 when death did not occur promptly.

וכי יכה איש את עין עבדו, If a man smite the eye of his slave, etc. In Kidushin 24 Rabbi Shimon ben Gamliel and the other rabbis disagree on the meaning of this verse. Rabbi Shimon ben Gamliel holds that the legislation contained in this verse applies only when the master has destroyed the eye of his slave deliberately; the other rabbis hold that even if he had not done so deliberately but had merely aimed his blow at the eye, the slave goes free. According to the rabbis, why did the Torah not begin the verse by writing: "whenever a master destroys the eye of his slave," instead of writing "when he strikes the eye of his slave and he destroys it?" Perhaps the Torah did not use this expression as I would have interpreted it as applying to the eye regardless of the intent which has to accompany such a destruction of the eye.

The Torah may also have intended to convey that though the eye was not destroyed immediately and totally at the time the master struck the slave but only some time later, the legislation that the slave goes free still applies. This situation is different from the one described earlier when death as a result of an unintentional killing had to occur immediately in order for the killer to be guilty of murder. The opinion of the rabbis is supported by the Torah using the word ושחתה, "he has destroyed it," i.e. even if he had not intended to.

ואם שן עבדו….יפיל, And if he smite a tooth of his slave…. so that it falls out, etc. Kidushin 24 explains why the laws concerning destroying a slave's eye or tooth are not lumped together by the Torah in one verse but have been divided into two separate laws. Rabbi Sheshet says if the eye of a slave was already blind but the master gouged it out, the slave has to be freed. Accordingly, we have two separate laws concerning how to free a slave. One applies when the eyesight of the slave has been impaired as a result of the master hitting him, the other if even a blind eye has been scratched out by his master. Had the Torah lumped these two kinds of injuries together in a single verse, we would have concluded that the same yardstick is applied in either kind of injury. Just as the tooth becomes useless only when it is knocked out, so we would have thought that an eye becomes useless only when it is gouged out. We would not have assumed that destroying merely the sense of sight in an eye was sufficient reason to let the slave go free seeing the slave did not lose a limb.

וכי יגח שור את איש, If an ox gore a man, etc. The apparently superfluous word את is explained in Sanhedrin 79. If Shimon intended to kill Reuven but killed Levi instead he is guilty of murder since he intended to murder someone. The words את איש mean any man, even one other than the target. This applies only if the original target had been a human being; if one intended to kill an animal and killed a human being instead, the killer is not culpable for murder (compare Sanhedrin 78).

ומת, and he dies, this includes delayed death. As long as the death is attributable to the goring, the ox, i.e. his master, is liable. It is worthwhile to compare Rashi in Baba Kama 41 where the Talmud discusses the law of an ox goring and endangering the lives of three people none of whom died from the goring.

ולא יאכל את בשרו, and its meat may not be consumed. If the owner ate the meat he will receive 39 lashes. He is, however, not punished for enjoying the remains of the animal in other ways, such as the skin, etc., although any use of the remains of the animal is forbidden. This is the reason the Torah has not lumped all these various examples of injuries and fatal injuries together under a single heading.

והועד בבעליו, and its owner(s) had been warned, etc. The reason the Torah speaks of "its owners" (pl) is that in the event the ox in question is owned jointly by several people, all are guilty of the death penalty; the situation is not comparable to one where two people combined to administer a lethal blow to another. In the latter case both are not culpable before a human tribunal (compare Baba Kama 26). The reason is that there they are only free from a human tribunal, whereas both are guilty in the eyes of Heaven. In our case there is no death penalty by a human court even if the animal belongs to a single owner. When the Torah speaks about the owner יומת, it refers to death at the hands of Heaven. All owners have to pay the required amount of compensation, however.

פדיון נפשו. His soul's ransom. There is a dispute in Baba Kama 40 as to what determines the amount of compensation. Some hold that we evaluate the worth of the victim that has died, others that the basis of the compensation is the value of the offending animal. According to the opinion that we determine the amount of compensation based on the value of the ox which gored, it would appear that where the ox in question was owned by more than one individual each one has to pay the full amount of compensation seeing there is no death sentence by a human tribunal which would override the laws of financial compensation. According to the opinion that the basis of the compensation is the value of the victim, the offenders would only have to share the monetary value of the victim between them. In view of this, the question Rabbi Nachman asked Rabbi Acha bar Yaakov whether both owners have to pay compensation seems out of place, seeing this is a much older Tannaitic argument. Clearly, we cannot assume that the question mentioned in the Talmud is based on the assumption that the value of the offending ox is the basis of the compensation [which everyone agrees serves as atonement not as restitution, Ed.]. In the following scenario an ox worth 200 shekel has gored a human being whose market value as a slave would have been 50 shekel. If the ox was owned by more than one party, and the basis of compensation is the value (maximum) of the offending ox, each owner pays 50 shekels. No allowance is made for the fact that there are two owners who could have shared the damage of 50 shekels that had been inflicted. The problem Rabbi Nachman submitted to Rabbi Acha bar Yaakov was based on the assumption of the Chachamim that the value of the victim serves as the basis of the compensation. It appears that Maimonides also understood the problem in this way for he ruled in chapter 11 of his Hilchot Nizkey Mamon that monetary compensation is based on estimating the value of the slain person (or animal); if two people owned the offending animal, each partner has to pay compensation equivalent to the total value of the victim. The reason Maimonides takes the stricter view is because we have a doubt as to whose opinion is correct, and when matters of compensation for a life taken is involved we always accept the stricter view when in doubt.

Should the avenger of the victim have succeeded in killing the owner of the offending animal before the latter had a chance to make the compensatory payment, I believe the avenger is guilty of murder. The Torah law covering the avenger is applicable only if the killer had killed by his own hand, not when his property was the instrument causing the death.

וכי יפתח איש בור, If a man shall open a pit, etc. This means that even if an ox or donkey fell upon the person digging the pit, not only being killed itself but also killing the owner (digger) of the pit, the owner of the pit (or in this case his estate), must pay compensation to the owner of the animal which tripped and was killed although it caused the death of the owner of the pit (compare Erchin 7).

שור איש את שור רעהו, one man's ox that of another, etc. The reason the Torah writes the word את is because the scenario we deal with assumes A) that there were no witnesses, B) that both oxen are of equal value while alive; if, however, the attacking ox was clearly more valuable than its counterpart, the owner of the victimised ox is entitled to only half the value of the damage he has sustained; this is the ruling given in Baba Kama 34. The Talmud writes as follows: "If the value of the offending ox is less than that of the victim, we do not allow the owner of the victim to receive more than half the value of the offending animal. If we were to allow that, then the Torah should not have made the compensation depend on the sale of the surviving ox and its proceeds, but the Torah should have written: 'he shall pay him half the damage he has sustained.' The wording of the Torah proves that the owner of the dead ox does not receive more than half the value of the surviving ox even if this amounts to less than half the amount of damage he has sustained." The Talmud did not bother to mention that the owner of the victimised ox will certainly not receive more than half the value he has sustained. If we were to assume that the Torah assigns half of the value of the surviving animal to the owner of the victimised animal, it could happen that if the surviving animal is worth more than twice the value of the animal killed, the owner of the dead ox would receive more than the total value of the dead animal (while it was alive) as compensation. Such a situation is obviously not intended by the Torah.

ולא ישמרנו, and he did not supervise it adequately, etc. The correct interpretation of this verse follows what we learned in Baba Kama 46. Rabbi Eliezer is on record that the only adequate supervision of an aggressive ox such as the one mentioned in our verse is the knife, i.e. it has to be slaughtered. Rabbah elaborated: "why does the Torah speak of 'if he will not guard it,' because there is no longer any point in guarding it." If the ox had to be slaughtered what is the point of speaking of supervision?" Abbaye answered Rabbah that if one were to accept Rabbah's argument what is the meaning of "he did not cover it" in verse 33? [clearly if the pit had been covered nobody would have fallen into it. Ed.] So far the Talmud. I believe that Rabbah's point is well taken. There is obviously a difference between the situation involving the pit and that of the ox which had gored repeatedly. In the case of the pit, the Torah uses the future tense, it speaks of an event which has not happened as yet; Also the description of the victims is worded in the future. In the case of the ox which had gored repeatedly the Torah commences by telling us of the past history of that ox. The Torah suddenly switches to the future tense by saying ולא ישמרנו. Actually, the Torah should have written ולא שמרו, "and he did not guard it." Rabbah did not bother to answer Abbaye in the Talmud. According to the view of Rabbi Yehudah that even relatively minor supervision of such an ox is adequate in order to exonerate the owner if the ox gored again, the Torah must be understood thus: ולא ישמרנו, "if he did not guard it at all." It is worthwile to study the Talmud at the end of the chapter on folio 46.

ישלם שור, he shall pay an ox. Although the Talmud in Baba Kama 4 states that an ox which is a מועד, whose owner has been put on notice that his ox is agressive, will have to make restitution by paying the victim from the best quality of the fields the owner posesses, this rule is limited to situations when the owner of the aggressive ox owned property of a quality superior to that of the owner of the victim. If not,-using our verse as a guide,- he may be allowed to use the ox itself as payment. The statement in the Talmud may only mean that the owner of the aggressive ox must not use earth which is inferior to that owned by the victim's owner as a means of payment.

וטבחו, or he has slaughtered it, etc. This refers to either the ox or a sheep. Should the stolen animal be a lamb or a kid and the thief had to raise it in his home so that it turned into a different category animal, i.e. a fully grown one, he is not liable for this five or four-fold payment, seeing he had become its owner by the twin method of shinnuy reshut u-mekomo a change of both domain and place (home). This is the thrust of the comments by the Talmud in Baba Kama 65.

השור. the ox. In the Mishnah Baba Kama 62 it is stated that only the two categories of animals mentioned here ever qualify for the four or five-fold compensation payable to the owner. The reason cited there is that if other animals were included in that legislation the Torah should have written the words "and he either slaughtered it or sold it," immediately after the word שור instead of waiting until both שור and שה had been mentioned. As it is we deduce that either one of these two categories is meant exclusively. The present wording excludes both other categories of animals as well as the same category of animal if it had matured in the hands of the thief.

אם המצא תמצא ביד הגנב, If it was indeed found in the hands of the thief, etc. The reason that the Torah repeats the word המצא "to be found" is, A) if there are witnesses who testify that the thief has stolen this particular animal; B) that the owner or others have found the animal in its original state in the possession of the thief. If neither of these two conditions exists the thief is presumed to have either sold or slaughtered the animal in question and he has to make four or five-fold restitution on the basis of this assumption. The words: "he shall pay double" apply only when the animal is located unharmed. You should appreciate also that the law of four or five-fold restitution applies not only in the examples cited by the Torah; the same applies if the animal was lost or the thief gave it away as a gift. As long as the animal left the domain of the thief he becomes liable for this four or five-fold payment. Baba Kama 79 states so explicitly. The same applies even if the thief donated the animal to the Temple. I believe we can use this nuance as proof that if someone stole from a pagan or idolator he is not liable either for the double payment or to be sold for such theft if he is unable to make restitution as provided for in verse two. I am basing this on the use of the word רעהו in connection with this legislation (compare verse 35). This word always refers to someone who is a fellow-Jew. Clearly, the legislation in 21,35 applies only to offences committed against fellow Jews as mentioned in the Mechilta. We also know that the situation of a Jew being sold into servitude when unable to make repayment for theft applies only when the theft had been perpetrated against a Jew. Theft from Temple property also does not carry this kind of a penalty. The above is the opinion of Maimonides expressed in chapter three of his Hilchot Geneyvah. Since Maimonides does not cite a reason for these rulings I have decided to suggest the reasons for his decisions.