Mishpatim – Excuses, Excuses, Excuses…


In an introduction to this week’s Torah portion of Mishpatim, the Rashbam mentions that even though the specific halachos gleaned from the Torah portion are the most important thing, which could be found in the Talmud and is brought by his grandfather, Rashi’s commentary on the Torah, here in there, but the Rashbam is coming to explain the basic understanding of each pasuk, and therefore he will explain each mitzvah and law according to derech eretz, the proper mussar lesson, i.e. character development, that can be learned through the general understanding of the pesukim. (Click Here for Hebrew text.)

As an example, within the Torah portion there is the discussion of the laws of damages, including damages due to a pit. “And if a person opens a pit, or if a person digs a pit and does not cover it, and a bull or a donkey falls into it, the owner of the pit shall pay; he shall return money to its owner, and the dead body shall be his” (Shemos 21:34, 34). The Gemara in Bava Kamma 51a asks why the Torah has to mention both opening and digging a pit, for if one is liable for opening a pit, all the more so he should be liable for digging a pit? The Rashbam on the Torah answers this question saying, “When a person opens a pit which is deep and finishes his job already and is negligent and does not close the pit, or even if a person digs a pit and does not cover it each day by nightfall when he finishes his work, since he has to enter it the next day and dig some more, and it’s a hassle for him to cover it each day, nevertheless he is liable.” 
The Rashbam is answering the gemara’s question by saying that if one is in the midst of digging a pit, let say at a jobsite, he has every excuse, which might even make sense, or he can at least convince himself he has a logical argument of why it’s not worth covering the pit at the end of every workday as long as he has not finished the job yet. Maybe he blocked it off, put warning signs next to it, but to properly cover it, why should that be needed; what could really happen from now until the job is finished? The Torah is emphasizing that this is a lazy excuse, and one must take proper precautions to remove the potential damage one creates, even if it means covering and uncovering the pit each day until the job is done.

The Chizkuni alludes to the point the Rashbam is making and then explains in more detail the parameters of this damage. There is an important lesson that will be learnt through our responsibility to act as cognizant, mindful human beings. The Chizkuni says, “Either when a person opens a pit which was already finished for some time, or even if he digs a pit now and does not cover it in the evening because he wants to come back to it the next day to do more work of digging in the pit and he does not cover it [then he is liable]. But if he covers it then he is exempt, but only if it was covered properly. What is considered properly? Heavy enough for a wagon carrying stones to be able to ride over it, as stated in the Gemara Yerushalmi Bava Kamma 5:6, ‘Don’t make a hole under the street unless a wagon carrying stones can ride over it.’ Now if an ox falls into the open pit [then there is liability], but not if a person falls in because a person is a mindful being who would be watching where he is going, so if he falls in, he is the cause of hurting himself. The pasuk also mentions a donkey, to exclude vessels, for vessels don’t move without the protection of a person, and since he didn’t watch them well, he caused a loss to himself.” (Click here for Hebrew text.)
The Chizkuni explained all the basic laws of damages due to a pit. Whether a person opened a pit that was completed a while ago, or he is in the midst of digging a pit and is too lazy to cover it at the end of each day, which is granted not easy to do because the covering must be heavy and sturdy enough to hold a wagon carrying stones going across it. However, liability is only for animals that fall into it or tripped over it; injuries to human beings and their possessions who are not animals that have a “mind of their own,” the one responsible for the pit is exempt for those damages in general because a person is expected to have enough sense to take care of himself and his possessions and be cognizant of his surroundings.
One can still wonder why this is true, for the person who opened or dug up the pit was acting negligibly by not covering it up properly, and even with all his excuses and rationales he is still liable if an animal gets hurt by the pit. So why should human injury and his vessels be any different? The pit owner was still negligent, that hasn’t changed; why should anyone else be more careful, shouldn’t it be the person who dug up or opened the pit’s fault for causing such an obstruction and danger in the street?

We see from here, and when looking into the matter this is true by other damages as well, that Hashem expects human beings to use the gift He gave us of intellect and thought in order to be cognizant of our surroundings and to take proper precautions to not hurt anyone, but also not to get hurt when it can be avoided. It does not make a difference if you are the victim or the perpetrator you are still a human being and there are expectations from Hashem to use the gifts He has endowed us with. Even if there are times when the perpetrator isn’t liable for the damage to the victim because the victim is responsible to take care of himself that still does not exempt the perpetrator from putting in his efforts to avoid the damage, he just isn’t liable if damage happens. If we don’t use our sechel prpoerly then excuses we make up are just excuses.

Mishpatim – A Glimpse into the Jewish Perspective of Slavery

For Food for Thought in Spanish: Haga clic aquí para leer en español. Please share this with your Jewish Spanish speaking family, friends, and associates.

The Torah permits Jews to own slaves, but the way a slave must be treated by his master in Jewish law is very different than our perspective of how slaves were treated throughout history. In terms of a Jewish slave, the Torah opens this week’s portion of Mishpatim with the laws of Jewish slaves.  The Torah begins by saying, “When you acquire a Jewish slave, for six year he shall work, and on the seventh year he goes free” (Shemos 21:2). The master must treat his slave like a part of his household as the gemara in Kiddushin 22a comments: “The Sages taught: The verse states concerning a Hebrew slave: “Because he fares well with you,” which teaches that the slave should be with you, i.e., treated as your equal, in food, meaning that his food must be of the same quality as yours, and with you in drink. This means that there shall not be a situation in which you eat fine bread and he eats inferior bread, bread from coarse flour mixed with bran, which is low quality. There shall not be a situation in which you drink aged wine and he drinks inferior new wine. There shall not be a situation in which you sleep comfortably on bedding made from soft sheets and he sleeps on straw. From here the Sages stated: Anyone who acquires a Hebrew slave is considered like one who acquires a master for himself, because he must be careful that the slave’s living conditions are equal to his own.”  (Click here for Hebrew text.)

The Rabbeinu Bachye and Rashbam tell the reasons why a Jew would be sold as a slave. This pasuk talks about one who the court sold because he couldn’t pay for what he stole, as it writes, “If he has no [money], he shall be sold for his theft” (Shemos 22:2). But a Jew who sells himself as a slave because he is too poor to support himself is spoken about in parshas Behar, as it says, “And if your brother becomes destitute with you, and is sold to you, do not work him with slave labor. As an employee or a [hired] resident, he shall be with you; until the Jubilee year he shall work with you” (Vayikra 25:39, 40). But he shall not have heavily burdensome work or disgraceful work, as it says, “As an employee or a [hired] resident,” just as a hired worker does his skill, so too [the Jewish slave] should do his skill, and just as a hired employee works during the day and not at night so to this [Jewish slave] should work by day but not by night.
The Torah in this week’s portion goes on to say, “If he comes [in] alone, he shall go out alone; if he is a married man, his wife shall go out with him. If his master gives him a wife, and she bears him sons or daughters, the woman and her children shall belong to her master, and he shall go out alone. But if the slave says, ‘I love my master, my wife, and my children. I will not go free,’ his master shall bring him to the judges, and he shall bring him to the door or to the doorpost, and his master shall bore his ear with an awl, and he shall serve him forever” (Shemos 21:3-6). A Jewish slave is treated quite well! After his 7 year indenture he might not want to leave so quickly; indeed, there was a whole ceremony to allow him to stay until the Yovel year (Jubilee 50th year), and the gemara in Kiddushin 22b elaborates, “Rabban Yoḥanan ben Zakkai would expound this verse as a type of decorative wreath [ḥomer], i.e., as an allegory: Why is the ear different from all the other limbs in the body, as the ear alone is pierced? The Holy One, Blessed be He, said: This ear heard My voice on Mount Sinai when I said: “For to Me the children of Israel are slaves.”    And Rabbi Shimon bar Rabbi Yehuda HaNasi would likewise expound this verse as a type of decorative wreath: Why are the door and a doorpost different from all other objects in the house, that the piercing is performed with them? The Holy One, Blessed be He, said: The door and the doorpost were witnesses in Egypt when I passed over the lintel and when I passed over the two doorposts of houses in which there were Jews (Exodus, chapter 12), and I said: “For to Me the children of Israel are slaves,” and they should not be slaves to slaves. And I delivered them at that time from slavery to freedom, and yet this man went and acquired a master for himself. Therefore, let him be pierced before them, as they are witnesses that he violated God’s will (Leviticus 25:55), which indicates: And they should not be slaves to slaves. And yet this man went and willingly acquired a master for himself. Therefore, let this ear be pierced.
Rabbeinu Bachye makes a very keen observation about a person who wants to stay a slave to his master. He says, “It is a known thing that it is customary in the world that the nature of a slave, standing in the control of his master, is disgusted by the very thought of his master, dislikes his life because of his work, and desires to be a freeman. This person who desires to stay with his work and to have a master other than the Blessed Hashem is an absolute nuance! Therefore this judgement comes about, that the master himself who chose this slave, and loved him, should be brought before the court and pierce his ear by the door in order to wound the limb that sinned, for it heard at Mount Sinai ‘Don’t steal’ and it went and stole, or because it writes ‘for Me are the Children of Israel slaves’ (Vayikra 25:55) and not slaves to slaves, and he bought for himself a master. Nevertheless for which ever reason it was, it is considered a sin on his part, for he is estranging himself from His Master on High who is Blessed, who warned him, when he accepted the Torah to not acquire any other master, and he now took off the yoke of that mitzvah.” (Click here for Hebrew text.)
Something incredible is going on here which needs a lot of analysis! Granted, this person did something wrong by stealing and because he couldn’t pay back he was sold into slavery to pay his dues, but first off, that was done by the court. Even the person that chose to sell himself because he was too poor to make ends meet, how can he be faulted for Hashem putting him into that position which compelled him to sell himself as a slave to a fellow Jew? Furthermore, how can we blame him for wanting to stay past the 7 years? He is being treated quite well, like a son or, even better, not overly worked, with room and board, possibly with another wife and children; Hashem essentially put him into the position of wanting to stay by commanding the master to treat him well, so why is he held as a sinner, who seems to be abandoning Hashem for wanting to stay longer with his master, especially if the Torah allows it?!

We have to first put into context what exactly happened. Almost everyone can relate that they hate working, mainly do it for the money, love getting time off, look forward to the weekends, and most likely hate their boss. It is human nature, for the most part, because work is a curse that Hashem gave Adam when he committed the first sin of mankind, as it says, “With the sweat of your face you shall eat bread, until you return to the ground…” (Breishis 3:19). Now, granted, a Jewish slave has tons of benefits, but he still is breaking the very nature of a human being, which seems to hate working even with all the benefits he might be entitled to and get. But not only is he going against human nature, which Hashem instilled into us, he is also going against the very command he as a Jew was given and accepted when Hashem took us out of Egyptian bondage and declared Himself as our master and us as His servants, which we, together, agreed to. So granted Hashem allows in His Torah for a Jew to enslave another Jew, that seems to be a consequence, but it was his decision to steal and it was also his decision to sell himself as a slave, so now that he wants to stay a slave he is admonished and punished for choosing to put himself into this situation. We see from here that even though Hashem might allow situations like this to happen, He very much shuns them and holds the person who got himself into the mess accountable for what he did even if it looks like Hashem “helped” him to get into this rut, but he had the choice to figure out a way to avoid it and he didn’t.

Chaza”l say that the path one chooses Hashem leads him on whether for good or for bad. But even if a person initially chooses a wrong path, Hashem gives him chances to correct his ways and get back onto the right path just like the Jewish slave who has the chance to go free after 7 years if he so chooses. Granted Hashem might let him enjoy the path he is on even if it is bad but that is all part of Hashem’s kindness of taking care of this person in the moment. However if the person so chooses to return to the right path he will be rewarded exponentially for making the right, albeit difficult decision.