Parshas Mishpatim

וְאִם אָמֹר יֹאמַר הָעֶבֶד אָהַבְתִּי אֶת אֲדֹנִי אֶת אִשְׁתִּי וְאֶת בָּנָי לֹא אֵצֵא חָפְשִׁי: וְהִגִּישׁוֹ אֲדֹנָיו אֶל הָאֱלֹהִים וְהִגִּישׁוֹ אֶל הַדֶּלֶת אוֹ אֶל הַמְּזוּזָה וְרָצַע אֲדֹנָיו אֶת אָזְנוֹ בַּמַּרְצֵעַ וַעֲבָדוֹ לְעֹלָם. (שמות כא/ה-ו)

On the possuk, “But if the slave (who worked for his master six years and is about to go free) 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 pierce his ear with an awl, and he shall serve him forever.

Rashi explains, “…Why was the ear chosen to be pierced out of all the organs of the body? Rabban Yochanan ben Zakkai said: The ear that heard on Har Sinai, “You shall not steal” (Shemos 20/3) and [then] went and stole, shall be pierced…”.

In other words, his ear is pierced because he didn’t carry out what he heard with his ears on Har Sinai that it is assur to steal.

Zera Shimshon asks that according to this, why is his ear pierced only after working for six years and choosing to be a slave even longer? It would seems that he deserves this punishment right at the time that he was caught stealing!

He answers in light of the Nemukai Yosef’s commentary on a gemorra in Moad Kattan (17a).

The Gemorro there relates, “Resh Lakish was once guarding an orchard [when] a person came and ate [some] figs. He shouted at him, but this man did not listen to him. (Resh Lakish, seeing this) said: ‘Let that person be in chairam (excommunicated)!’ He (the thieve) replied: ‘You [Resh Lakish] should be in chairam! I admit that I owe you money (because I stole your fruit), but do I deserve to be put into chairam?” [Resh Lakish] went to the Yeshiva (and reported what happened); they said to him: ‘His chairam is a (justified) chairam, yours was not a (justified) chairam!”.

Meaning, even though that this person stole, he didn’t deserve to be punished but only to pay back the figs that he stole. On the other hand, Resh Lakish was wrong for putting this person into chairam and therefore HE deserved to put into chairam!

The Nimukai Yosef, in the name of the Raivid, explains that the reason that this thief didn’t deserve to be put into chairam (even though he stole which is prohibited from the Torah) is because it is not certain that he had corrupt intentions. It was very likely that he reasoned that since these fruits were grown in order to be sold there was nothing wrong with eating them and to pay the owner later. Since he isn’t corrupt, he doesn’t deserve to be punished (only to return what he ate). The Nimukai Yosef goes on to say that this is only if we really believe that there was a chance that he mistakingly stole. However, if it is clear to the Dayanim that he had full intention to steal then he is immediately punished.

Let’s try to understand the intentions of thief who was sold to be a slave that the Chumash is speaking about.

It is written in the Gemorro (Babba Basra 116a), “RPinchus bar Chama taught, ‘Poverty in a person’s house is more difficult than fifty plagues….'”. Maharsha there learns from the fact that RPinchus bar Chama said “Poverty IN A PERSON’S HOUSE…” and not simply “Poverty…. that even when others around him are not in poverty and they can help him with a job etc. his situation is still worse than fifty plagues since he is not independent.

Therefore this poor man (who ended up stealing) had two choices in front of him. One choice was to sell himself to be a slave (instead of to steal and have Bais Din sell him to pay his debt). The other choice was to steal and when he got money he would pay back the one from whom he stole.

Bais Din assumed that the logic of his choice went like this. If he sold himself he would not alleviate the pain of poverty (like the Maharsha explained). In addition to this, Chazal (Kidushin 22b) learn from the possuk, “they (Bnei Yisroel) are my slaves” that one shouldn’t sell oneself to be a slave to someone else (since we are already Hashem’s slaves). He therefore chose to steal with the intention to pay back.

You might ask, “What did he gain?” To steal with the intent to pay back is also assur?

However he reasoned that this was still a better option. Firstly, the prohibition to sell oneself is more explicit (they are My slaves) than the prohibition to steal with the intention to pay back (which was derived from seemingly extra pessukim). And secondly, people don’t look at such a theft as something wrong. (The gemorro in Babba Kama writes that this halacha wasn’t even clear to Dovid HaMelech!)

Bais Din only considered the possibility that he did not have bad intentions until he chose to carry on being a slave at the end of six years. However, at the end of six years when he had a choice to go free but chose to stay on, Bais Din saw that his choice to steal and pay back was not based on the above reasoning. When he chose to stay on being a slave ax Bais ax Din saw that he doesn’t really mind a poverty of being dependent on others.

And from the fact that he didn’t resist the temptation to stay a slave because of the possuk “and on the seventh year he should go free” we see that he doesn’t really care what it says in the Chumash.

Concludes Zera Shimshon, since the two arguments that we used to judge him favorably were proven false we now give him the punishment to pierce his ear!
2

וְאֵלֶּה הַמִּשְׁפָּטִים אֲשֶׁר תָּשִׂים לִפְנֵיהֶם:

“And these are the laws that you should place before them.”

Seemingly this parsha is written out of order. In the middle of last week’s parsha the Torah writes about the Giving of The Torah. After that the Torah speaks about the mizbaiach. And after that comes our parsha, that teaches us civil laws. It would seem that the civil laws should be written right after the parsha of Giving The Torah.

Apparently Chazal were bothered by this question and they explain that the reason for is to teach us that just like this parsha is next to the halachos of the mizbaiach so too we should place the Sanhedrin next to the mizbaiach. (This is the wording of the Mechilta and some versions of Rashi. In other versions of Rashi it says that the Sanhedrin should be near to the Bais HaMikdash.)

Zera Shimshon asks that the Sanhedrin wasn’t at all next to the mizbaiach! The Sanhedrin sat in a room called Lishkas HaGazis. This room was situated on the outer parameter of the Bais HaMikdash, half built on kodesh ground and half built on non-kodesh ground. The Gemorro in Yoma (daf 25/a) says that the Sanhedrin sat in the non-kodesh part! How then do we understand this Chazal that says that the Sanhedrin was next to the mizbaiach?

Zera Shimshon explains that Chazal are not learning from the order of the pessukim the physical location of the Sanhedrin but rather they are learning that the Sanhedrin is similar to the mizbaiach. For instance, just like the mizbaiach is made up of complete stones that are not broken or even chipped, so too the members of Snahedrin must be complete in their personalities ( midos tovos).

He continues to say that we also learn another halacha concerning the Sanhedrin from the Mizbaiach.

Before we get to this halacha, Zera Shimshon asks another question.

Chazal explain that this possuk, “And these are the laws that you should place before them” is not only a preface to the whole parsha. It teaches us the specific halacha that the laws in this parsha should only be given over and taught to Jews and not to non-Jews.

This being so, Zera Shimshon asks, what is the connection between this halacha and the fact that Sanhedrin are similar to the mizbaiach that they are both put together in one possuk?

He explains that there is another halacha concerning Sanhedrin that we learn from the mizbaiach. That just like both Jews and non-Jews can sacrifice a korbon on the Mizbaiach, so too both Jews and non-Jews can come before the Sanhedrin to pasken for them.

According to this, the two halachos alluded to in this possuk are not only similar but actually complement and explain each other!

Meaning: from the halacha that we can teach only Jewish people our halachos it would seem that we couldn’t pasken for a non-Jew since we would be teaching him a halacha. Therefore the Torah positioned this parsha next to the parsha that talks about the mizbaiach to teach us that both Jews and non-Jews can come before Sanhedrin just like they can bring a korbon on the mizbaiach.

The question still remains, “how then do we undersand the halacha, “…that you should place before THEM…” and not before non-Jews”?

Zera Shishmon concludes that it is only prohibited to teach the depth of the halacha to a non-Jew but the straight halacha we learn from the mizbaiach that it is permitted.

3

וְאֵלֶּה הַמִּשְׁפָּטִים אֲשֶׁר תָּשִׂים לִפְנֵיהֶם:

And these are the laws that you should place before them.

On the first possuk of our parsha, “And these are the laws that you should put before them…” the Medrash comments, “Dovid (HaMelech) said “The fear of the Hashem is pure, existing forever; the judgments of the Hashem are true, altogether just.”. Why is this? Because if he has this (yiras shomayim), he has everything. There are people who learn Medrash, Halochos, Agados. However, if they don’t have fear (of Hashem) they have nothing.”

Zera Shimshon asks four questions.

1) Why does the possuk write “And these are the laws that you should PLACE BEFORE them” and not simply “And these are the laws that you should TEACH them” or “JUDGE them”?

2) What is the difficulty of the possuk that the Medrash comes to answer?

3) Rashi asks, “Why does the parsha begin with a “vav“- which means “And these are the laws…” and not simply, “These are the laws…”?

Rashi answers that the vav” is “vav hachibor” – a “vav” that connects the present possuk with a previous one. In our case, Rashi explains, it connects Parshas Mishpatim with the previous parsha of the giving of the Torah on Har Sinai. The connection comes to teach us that just like the Ten Commandments were given on Har Sinai so to the mishpatim, our civil laws, were also given on Har Sinai.

Zera Shimshon asks, though, that this answer isn’t complete! Every halacha that is written in the Torah was given on Har Sinai! Why would I think that this parsha is an exception?

4) What is the connection between the possuk the Medrash brings and our parsha? Where is fear of Hashem even slightly alluded to in the parsha?

To answer all of these questions Zera Shimshon presents two concepts.

1) There is a Mitzvo for Bais Din to arbitrate a compromise and not pasken according to the strict letter of the law.

The Gemorra Sanhedrin (6b) says there that there is a mitzvo for Bais Din to make a compromise between the two parties and not to pasken according to the strict letter of the law.The source that the Gemorra brings for this opinion is the possuk, “and David administered justice and charity for all his people”. The Gemorro asks, how is it possible for “justice” to be also “charity”? The Gemorra answer is that this is done when there is compromise.

2) Yiras Shamayim is at the root of compromise and one needs ax yiras ax Shamayim to arbitrate a fear compromise.

Maharsha explains that one who has Yiras Shamayim makes comprimises between the two parties. When there is din” and the dayan isn’t as cautious in his ruling as he could be, he is held responsible for taking money from the innocent party.

However when there is a compromise and both parties agree to the p’sak even if the dayan does make a mistake there is mechila and therefore no punishment.

Therefore, one who has fear of punishment from Hashem looks to make compromises.

Not only is yiras shamayim at the root of compromise, adds Zera Shimshon, but when the compromise is made it has to be as close to the din as possible.

The dayan can’t mislead one the parties to agree to something that really isn’t fair for him. He needs yiras shamayim to keep as close to the din as possible while, at the same time, making each party give up a little of their claim.

With these concepts in mind we can now answer and understand all 5 questions.

Since there is mitzvo to compromise we can assume that when the Torah speaks about judgements- mishpat– it is referring to the optimal type which is a compromise.

It is for this reason that the Torah can’t write “And these are the laws that you l teach them or judge them because every case is different, dependent on what the two parties agree. (Answer to first question.)

Because our parsha speaks of compromise we might think that this parsha was not given on Har Sinai but rather every dayan can pasken according to what he thinks both parties will agree to. (The answer to second question)

The Medrash was bothered by Rashi’s question, “What is the meaning of the vav” in the word “veilla hamishpatim” (Answer to third question.)

The Medrash agrees with Rashi that the vav” connects our parsha with the parsha of the giving of the Torah.

However, a new question now arises; how is compromise (the subject of our parsha) connected to the exact Torah that we received at Sinai?

The Medrash found the answer to this question in the possuk “The fear of the Hashem is pure, existing forever; the judgments of the Hashem are true, altogether just.” The fear of Hashem, which leads to compromise, is pure…. brings to the judgements of Hashem are true.

Even though their was compromise since it was done with yiras shamayim and didn’t deviate completely from the din then it considered as “the judgments of the Hashem are true, altogether just.
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