Exodus · Chapter 21

And these are the ordinances that you shall set before them.

ואלה המשפטים NOW THESE ARE THE JUDGMENTS — Wherever אלה, “these are”, is used it cuts off (פוסל) the preceding section from that which it introduces; where, however, ואלה “and these” is used it adds something to the former subject (i. e. forms a continuation of it). So also here: “And these are the judgments (i. e. these, also)”: What is the case with the former commandments (the עשרת הדברות)? They were given at Sinai! So these, too, were given at Sinai! (Mekhilta; Shemot Rabbah 30:3; cf. also Midrash Tanchuma, Mishpatim 3) If this be so, why is this section dealing with the “civil laws” placed immediately after that commanding the making of the altar? To tell you that you should seat (i. e. provide quarters for) the Sanhedrin in the vicinity of the Temple. אשר תשים לפניהם WHICH THOU SHALT PUT BEFORE THEM — God said to Moses: It should not enter your mind to say, “I shall teach them a section of the Torah or a single Halacha twice or three times until it will become current in their mouths exactly according to its wording (i. e. until they know the text verbatim), but I shall not take the trouble to make them understand the reason of each thing and its significance”; therefore Scripture says, אשר תשים לפניהם, “which thou shalt set before them” (cf. Genesis 34:23) — like a table fully laid before a person with everything ready for eating (Mekhilta). לפניהם BEFORE THEM — but not before the heathens. Even if you know that in the case of a particular matter of law they will decide it in the same way as Jewish law would, do not bring it before their courts; for he who brings Israel’s law-cases before the heathens defames the Name of the Lord and pays honour to the name of the idol (in the name of which the heathen court administers justice), thereby giving it undue importance, as it is said, (Deuteronomy 32:31) “For their rock is not as our Rock that our enemies should be judges over us”, which implies: when our enemies are judges over us (i. e. if we make them judges over us) it is a testimony to the superiority of that which they reverence (their idol) (Midrash Tanchuma, Mishpatim 3).

AND THESE ARE THE ORDINANCES WHICH THOU SHALT SET BEFORE THEM. The reason [why this whole section dealing with mishpatim — civil laws — is placed here, rather than being placed after the chukim — statutes — as is the order in the commandments given at Marah], is that G-d wanted to explain to them first the civil laws. Thus we find that the first of the Ten Commandments dealt with the obligation of knowing of the existence of G-d, and the second one with the prohibition against idolatry, after which [following the giving of the Ten Commandments] He again instructed Moses, saying, Thus shalt thou say unto the children of Israel: Ye yourselves have seen that I have talked with you from heaven, meaning that you, [Moses] should warn them again to take to heart that which they have seen, so that they will be careful to keep these precepts which I have commanded them. For Ye yourselves have seen corresponds to the commandment, I am the Eternal thy G-d; Ye shall not make with Me — gods of silver etc. — corresponds with Thou shalt have no other gods, thereby completing the subject of idolatry; likewise, And these are the ordinances corresponds to Thou shalt not covet, for if a man does not know the laws of house and field or other possessions, he might think that they belong to him and thus covet them and take them for himself. This is why He said, thou shalt set before them just ordinances, which they should establish amongst themselves, so that they will not covet that which does not legally belong to them. And thus did the Rabbis say in Midrash Rabbah: “The whole Torah depends on justice; that is why the Holy One, blessed be He, gave the civil laws directly after the Ten Commandments.” Similarly G-d explains in this section of These are the ordinances additional laws about idolatry, the honor of parents, murder, and adultery — which are all mentioned in the Ten Commandments. The Rabbis have explained: “Before them, but not before the Canaanites.” This interpretation is based on the observation that it should have said, “which tasim lahem” (“thou shalt set for them”) just as He said, There ‘sam lo’ (He set for them) a statute and an ordinance; thus since He said, which thou shalt set ‘liphneihem’ (before them), we interpret this to mean that they should be the judges, for it is with reference to a judge that this term [liphnei (before)] appears in Scripture: And both the men, between whom the controversy is, shall stand before the Eternal, ‘liphnei’ (before) the priests and the judges; Until he stand ‘liphnei’ (before) the congregation for judgment; ‘liphnei’ (before) all who know law and judgment. The Rabbis further explained: “Before them, but not before laymen.” They interpreted [the verse in this way] because with reference to the ordinances it is written: Then his master shall bring him unto ‘ha’elohim;’ the cause of both parties shall come before ‘ha’elohim;’ and it is also written, and he shall give ‘biphlilim’ (as the judges determine) — thes...

One who pays attention to the plain meanings — both the general principles and the particulars — will then reflect on why the vav is written with "these are the ordinances" (וְאֵלֶּה הַמִּשְׁפָּטִים). After Israel said to Moses, "You speak with us" (above, 20:16), Hashem told Moses when he approached the thick darkness, "Thus shall you say to the Children of Israel" (ibid., v. 19), and He began to warn them concerning the gods of gold and to make a covenant with them upon his descent — that Hashem alone would be their God. He instructed him in the ordinances and commandments which he would convey to them, so that if they accepted them He would make a covenant with them. And He told him at the end of this section of terms: "Behold, I am sending an angel before you" (below, 23:20). The core of the passage is to eradicate the worship of idols from their land when they enter it. So too did Moses expound it to them before the covenant was made, concluding with "and you shall not serve their gods" (Deut. 7:16). The beginning of the passage addresses not making other gods together with Hashem, and the end of the passage deals with cutting off the memory of the idols and graven images that are made in the land of Canaan.

ואלה המשפטים, in the previous paragraph the Torah spoke about the prohibition of coveting property belonging to someone else (20,13). This did not involve action; by contrast ואלה המשפטים, now the Torah speaks about laws governing the concrete nature of “אשר לרעך,” tangible matters belonging to your fellow man. אשר תשים לפניהם. These are not positive commandments and negative commandments which apply to every Jew, but are applicable only if the occasion arises. The matters under discussion need to be adjudicated only if and when such situations occur in someone’s life.

ואלה המשפטים, "And these are the ordinances, etc." The word ואלה needs analysis. We find a disagreement in the Mechilta between Rabbi Yishmael and Rabbi Akiva on this subject. The former holds that the reason for the linkage between the Ten Commandments and the ordinances is to tell us that just as the former are of Sinaitic i.e. Divine origin, so are the latter. Rabbi Akiva said the reason for the conjunctive letter ו is that we could have thought that Moses was to teach the ordinances to the Israelites and if they did not understand them all, he, Moses, did not have to repeat them; therefore the Torah speaks of תשים לפניהם "place them in front of them," as one lays a meal before people which is ready to be eaten. According to Rabbi Yishmael who holds that the ordinances are of Sinaitic origin it is obvious that the Torah speaks about the details of these various laws being of Divine origin seeing we already know that the outlines are of Divine origin. Rabbi Yishmael has said himself in Zevachim 115 that all the general rules of the commandments of the Torah were handed down from Sinai, whereas Moses was told the details when G'd used to speak to him in the Tabernacle. If so, the commandments referred to here were the general outline only and there would be no reason for adding the letter ו in front of אלה. According to Rabbi Akiva who claimed that both general outlines and details were revealed to Moses at Mount Sinai, the expression ואלה המשפטים is also unnecessary. We need to look a little closer at what Rashi has to say on our verse. In our verse he explains the expression in line with Rabbi Yishmael, whereas at the beginning of Leviticus 25,1 where the Torah speaks about what G'd said to Moses at Mount Sinai, Rashi explains the verse in terms of Rabbi Akiva's statement in the Mechilta we quoted earlier. Rabbi Akiva said that just as both the outline and the details of the Shmittah regulations originated at Sinai, so all the laws in the Torah originated at Sinai. Why does Rashi give two separate interpretations instead of mentioning that Rabbi Yishmael and Rabbi Akiva disagree in their understanding of our verse? Rashi could have more easily stated that the letter ו is to tell Moses how to teach the laws to the Jewish people, i.e. to set it before them like a table which is all laid out for the guests. He could have said that this rule applies both to the commandments regulating our relations with G'd as well as to those regulating our relations with each other. I have seen that Rabbi Eliyah Mizrachi explains the statement of Rabbi Yishmael to mean that even the ordinances were also communicated to the Israelites amidst thunder and lightning, and that G'd spoke more than just the Ten Commandments at Mount Sinai. Even if Rabbi Yishmael had said so expressly, he would have had to substantiate this, all the more so since Rabbi Mizrachi only credits him with having meant this. According to the Mechilta all Rabbi Yishmael is quoted as saying ...

ואלה המשפטים, “and these are the ordinances, etc.” according to Rashi whenever the word אלה appears, it signals a break with what preceded, whereas when the word ואלה appears it signals a continuation or addition of the subject that had been discussed previously. In other words, the correct translation of the word: אלה is: “these opposed to what preceded it,” whereas ואלה should be translated as “and these as well as the preceding verses.” The author warns the reader not to challenge Rashi by quoting the word אלה in Leviticus 27,34, or the same word in Numbers 36,13, and Numbers 30,17 nor the same word in Deuteronomy 28,69, as in those instances as well as in others like it, the previously mentioned subject has been concluded. ואלה המשפטים, Rabbi Avahu, quoting Rabbi Yossi ben Zimra said that the word אלה represents a break with what was written previously, whereas when the word appears with the prefix letter ו it signals some type of continuation. He quotes Exodus 15,25, as an example, where the Torah had written: שם שם לו חוק ומשפט ושם נסהו, “there He made for them a fixed rule and gave them social laws, there He put them to a test.” המשפטים, prior to this paragraph the Torah spoke about aspects of being G-d fearing, whereas from now on it concentrates on laws that enable living in the land of Israel as a civilised nation. An alternate interpretation: previously the Torah spelled out prohibitions as warnings, as for instance: “do not commit murder; do not commit adultery;” from here on in the Torah repeats the prohibitions but adds the type of penalty that applies to violating these prohibitions deliberately. As to the commentary by Rashi here, who poses the question why we read here about the details of an altar, something entirely different from the subjects the Torah deals with here, he bases himself on the Mechilta, which suggests that this is a hint that the High Court should have its office near the Temple and that all these laws had been told to Moses while he was on the Mountain. The altar was after all also close to the Temple, immediately in front of its eastern entrance. Logic dictates that the whole paragraph commencing with 21,2 “when you purchase a Jewish slave, etc., until chapter 23,10, ושש שנים תזרע, “and during six consecutive years you may plant seeds,” are all laws that G-d taught Moses while he was on the Mountain before the people had heard the Ten Commandments. Concerning all these laws, Rashi has written: these laws are a continuation of the earlier laws.” He is referring to the laws listed in Parshat B’har in the Book of Leviticus. לפניהם “before them;” on this word Rashi comments: “before the Israelites and not before the gentiles,” even if you know that the gentile judges are experts in the section of law concerned in the litigation. When someone submits his legal problems to gentile judges he thereby desecrates the name of G-d, and simultaneously honours the reputation of the deity whom these judges worship. If the Jewish judges have given a ruling on the case and his Jewish opponent has not submitted to that judgment, the party deemed in the right may then appeal to gentile judges who have more power to enforce their ruling. [If both Jewish parties concerned are living in the Diaspora. Ed.]

גם אלה לחכמים הכר פנים במשפט בל טוב. “These things also belong to the wise; it is not good to display partiality in judgment” (Proverbs 24,23). From the beginning of the Book of Proverbs up until here Solomon made it his business to admonish foolish people and adolescents. In fact, he announced his purpose at the very beginning of the Book when he said (1,4) “to give prudence to the simple, to the young man knowledge and discretion.” Commencing with this verse he switches and admonishes the scholars, the ones who preside in the courts and dispense justice. This is why he said at the beginning of the verse we quoted above גם אלה, meaning that “also these parables” are meant for the wise. What does his admonition consist of? “It is not good to display partiality in judgment.” Solomon condemns partiality as a negative character trait. Why did we need Solomon to tell us this seeing that the Torah (Deut. 1,17) has already written: לא תכירו פנים במשפט, “do not show favoritism in judgment?” Solomon added an additional dimension to what the Torah had said in that the Torah did not mention a specific penalty for judges guilty of showing favoritism. Solomon adds (verse 24) “he who says to the wicked ‘you are righteous’ will be cursed by people, nations will abhor him.” If a judge convicts an innocent person the outrage of the people will be even greater, and he will likely be removed from his position as judge. Seeing that the entire Torah from בראשית until לעיני כל ישראל is inextricably tied to a system of justice Solomon said בל טוב instead of לא טוב parallel to what we say in Psalms 147,20 ומשפטים בל ידעום, “He did not acquaint them with a system of fair justice (the Gentiles).” It is a well known fact that משפט, a system of justice, is the foundation of the throne of G’d’s glory as mentioned in Psalms 89,15: “righteousness and justice are the foundations of your throne.” Anyone helping to establish true justice on earth thereby helps to strengthen the foundation of G’d’s throne. He who perverts justice undermines the foundations of G’d’s throne. By saying בל טוב, Solomon indicated that a person guilty of this will not merit טוב, will not experience “goodness in store for the righteous,” of which the psalmist (Psalms 31,20) said: “how abundant is the good that You have in store for those who fear You.” Solomon taught us in Proverbs that he who is guilty of showing partiality in judgment will be punished not only in this world but also in the world to come. Justice is the prerequisite for peace. This is why we find Yitro telling Moses that if he were to carry out his advice with the approval of G’d, “also this whole people will arrive at its destination in peace” (Exodus 18,23). Peace ensures the continued existence of the world This is why the sages (Berachot 64) say that the scholars add to the amount of peace in the world (seeing they are in charge of administering justice). This is also why it is forbidden to submit disputes to Gentiles and only the sages of Israel must adjudicate between Jew and fellow Jew. ואלה המשפטים אשר תשים לפניהם, “and these are the ordinances which you shall place before them.” The Talmud Gittin 88 understands the word “before them” to mean that these ordinances are to be submitted to the wise, the trained and not to the uninformed average Israelite. Rashi elaborates there by saying that the legislation before us was presented by Moses to the seventy elders, i.e. the members of the Supreme Court. These elders had already functioned as the highest tribunal prior to the giving of the Torah at Mount Sinai. They were the people who ascended part of Mount Sinai together with Moses (24,1). The Talmud there is bothered by the fact that ordination as an elder is impossible in Babylon or anywhere else outside the Holy Land. This would appear to deprive Jewish judges in the Diaspora of their authority. The Talmud concludes that the status of such Judges as הדיוטות notwithstanding, the fact that each such judge views himself as merely an appointee of a judge ordained as such in Eretz Yisrael makes their status legal. This entire line of exegesis is based on the unusual word לפניהם, “before them,” instead of להם, “to them,” which is the normal way of the Torah telling Moses to convey legislation to the Israelites (compare 15,25 שם שם לו לו חוק ומשפט). Keeping this in mind, the Talmud also uses the word לפניהם as a prohibition not to submit disputes to gentile courts even if these are guided by Torah principles of adjudicating disputes. Our sages of old considered the sin of submitting inter-Jewish disputes to gentile jurisdiction as consisting of a number of violations of the Torah. The author proceeds to illustrate this by means of an example: It is generally admitted that murder is one of the most severe offenses that man can commit and the Torah punishes it severely. It is a facet of the seven Noachide commandments concerning which the Torah wrote that he who spills the blood of a human being will have his own blood spilled by the hands of humans (Genesis 9,6). Sanhedrin 37 points out that by killing a single human being, very often all his potential offspring is also “killed,” i.e. prevented from ever being born. In other words, it is impossible to know the number of potential human beings who are denied life through the murder of a single human being. There was a time when Adam was the only inhabitant of the universe. Had someone, even an animal, killed him at that stage the human race would have been wiped out through a single act of murder. This puts into perspective the famous saying of our sages that anyone who kills a single human being is viewed as if he had murdered a whole world full of human beings (Sanhedrin 37). The reverse is true of someone who saves the life of even a single person. By doing so, he may be equivalent to saving the entire human race. All of this brings home to you the enormity of the crime of killing a single human being without due process of law. In spite of the severity of the crime of murder, the crime of robbery and desecration of the Holy Name of G’d is considered as even more serious. The sin of murder is subject to forgiveness if the murderer repents truly as we know from Kayin who murdered his brother Hevel and who repented and was forgiven (compare Pirke d'Rabbi Eliezer who takes the words (Genesis 4,13: “my guilt is too heavy to bear” as proof of Kayin’s repentance). Not so the sin of robbery. Repentance does not wipe out the sin of robbery unless the robber had first restored the property in question to the victim. If no restitution is made his sin will never be forgiven. The same applies to the sin of desecrating the name of the Lord. This is a sin more serious than any of those punishable by death at the hands of a human tribunal or even at the hands of G’d, i.e. karet. Our sages (Yuma 86) state that if someone is guilty of a sin for which the death penalty by execution or karet is mandatory (but has not been carried out) and the sinner has repented and Yom Kippur has passed before he died or has been executed, (if there were no witnesses, or similar) then his repentance may achieve a suspended sentence and the afflictions he suffers in this world may eventually wipe out his guilt. If, however, he is guilty of desecrating the name of the Lord, none of these measures will help him achieve atonement. Only his death may eventually atone for his sin. Our sages base this on Isaiah 22,14: “then the Lord of Hosts revealed to my ears; this iniquity shall never be forgiven you until you die.” Anyone who submits inter-Jewish disputes to a gentile tribunal thereby becomes guilty (at least inadvertently) of both the sin of robbery and the sin of desecrating the Lord’s name (whose judges he rejected by implying that G’d’s justice is defective). By going to pagan judges to seek justice one enhances the reputation of pagan religions and their deities in whose name justice is meted out. The Torah (Deut. 32,31 ) has said: “for their Rock is not like our Rock, yet our enemies judge us.” The Torah means: “when our enemies act as our judges.” Anyone who voluntarily chooses non-Jewish courts and has read the passage we cited displays drunkenness and total confusion in his thinking. This is what Isaiah 29,9 had in mind when he spoke of: ”they are drunk but not from wine, they stagger but not from liquor.” People who act in this manner abandon primary pillars of Judaism in the hope of securing or retaining secondary values (the money or property under dispute). This is considered robbery in the true sense of the word. David (Psalms 16,4) had this to say about this kind of behavior: ירבו עצבותם אחר מהרו, “those who have other gods will suffer many afflictions for the sake of mohar, financial gain” (compare Rashi on that verse). Turning to non-Jewish courts is also considered an act of robbery. One commits unknowingly complete robbery if he is awarded money or property by that court. Seeing the recipient of such a reward considers the money so obtained as rightfully his, he will never restore it to the true owner and will remain guilty of this act of robbery. This is why he will never be forgiven. Concerning the word תשים, “you will place,” an unusual word to say the least, this is to teach the judges to whom this paragraph is primarily addressed, to explain the basis for their judgment to the litigants. They have to explain which proof convinced them to rule as they did. Our sages (Sanhedrin 31) say that the word תשים is equivalent to the loser telling the judge: “please write down for me on the basis of which halachah in the Torah you have decided in favor of my adversary.” A Midrashic approach(Shemot Rabbah 2): “wherever a paragraph is introduced with the word אלה, this signifies that there is no conceptual linkage to what was written now to what had preceded it immediately before. On the contrary, what follows is a contrast to what preceded it. Examples are Genesis 2,4: “these are the descendants of heaven and earth.” Up until then the Torah had described new creatures; from this point on it describes derivatives of existing creatures. It is as if G’d had said: “the former ones I did derive satisfaction from, the ones following them I did not derive satisfaction from.” “These are the descendants of Noach (Genesis 6,9).” By writing the introduction אלה, the Torah hints that the descendants of prior generations such as those of the generation of Enosh and the people who had to be killed during the deluge did not have much in common with the descendants of Noach. We find something similar in Genesis 37,2: ”these are the descendants of Yaakov.” Here too the Torah wants to draw a dividing line between the descendants of Esau and those of Yaakov. On the other hand, wherever a paragraph commences with the word ואלה, this indicates that what follows is sort of a continuation of what had been related previously. When the Book of Exodus commences with the words ואלה שמות בני ישראל, the Torah endeavours to pick up the thread about what we had learned about Yaakov’s sons in the Book of Genesis, a story which had been interrupted by Israel’s death and burial. The Torah wishes to describe the children of Yaakov as sharing in the virtues which distinguished their illustrious father. Here too, the words ואלה המשפטים, indicate that just as the commandments engraved on the Tablets were received at Mount Sinai, what will be related from here on in was also received from G’d by Moses at Mount Sinai. The Torah comprises laws at its beginning, in the middle, and at the end (Shemot Rabbah 30,3). In Exodus 15,25 we were told that G’d gave laws to the Jewish people at Marah; moreover in 18,2 the Torah stated that judges were to be ready to dispense justice at all times convenient to the litigants. Now, after the giving of the Ten Commandments the Torah continues to present the Jewish people with a list of laws. The words ואלה המשפטים and what follows provide the framework for the Ten Commandments which were both preceded by pieces of legislation and followed by more pieces of legislation. This is what Solomon had in mind when he wrote in Proverbs 8,20: “I walk the path of righteousness, in the path of justice.” Another approach (Shemot Rabbah 30,9): when David said in Psalms 147,19: “He issued His words to Yaakov, His statutes and social laws to Israel,” you have to carve up this phrase as follows: the words: “He tells His words to Yaakov” refer to the Ten Commandments; the words: “His statutes and social laws to Israel,” refer to our portion here, the one which commences with the words ואלה המשפטים; the words לא עשה כן לכל גוי ומשפטים, mean that “He did not do so” (give social laws to all other nations). However, He did give to Adam, and thereby to all of mankind, six statutes. When Noach appeared, He added a seventh commandment, אבר מן החי. [seeing that after the deluge mankind had been permitted to eat meat and to kill animals in order to provide themselves with meat, this prohibition of eating flesh taken from living tissue, from a live animal had to be given at that time. Ed.] When Avraham appeared on the stage of history an eighth commandment, circumcision of the males at eight days of age, was added to the existing range of commandments. With the advent of Yaakov, and after his successful encounter with the guardian angel of Esau, a ninth commandment, that of not eating the femoral sinew was introduced. When Israel stood at Mount Sinai they were given the Ten Commandments which symbolized the remainder of the Torah. This is the meaning of the words כף אחת עשרה זהב מלאה קטרת, (Numbers 7,14). The allegorical meaning of that phrase is: “the Torah which was given to the Jewish people from the hand of G’d to the hand of Moses is אחת, “one,” consisting of עשרה, “Ten Commandments” which in effect are מלאה קטרת, “filled with incense” a word totaling 613 (when exchanging the letter ר for the letter ד when using the system of א'ת, ב''ש etc. (compare our comments on Exodus 20,16 on the section dealing with the letter קוף being a natural alternative for the letter ד) When the Israelites stood at Mount Sinai and said: “all that the Lord has said we shall do and we shall hear,” He said to them: “here the whole Torah has been given to you.” This is what David said in Psalms 147,19 that “G’d had not given all these righteous laws to any other nation.” Rabbi Eliezer said: “when there is justice down here on earth, there is no justice in the heaven above (i.e. there is no need to apply the attribute of Justice in the celestial regions). When there is no justice on earth, then G’d has to invoke the attribute of Justice in the celestial regions” [to compensate for the absence of justice on earth. Ed.] G’d said: “if I had been required to invoke the attribute of Justice for even a single hour, the universe would not have been able to continue to exist.” This is what Isaiah had in mind when he said (Isaiah 27,4) “if I were to have to march into battle, I would have to burn all of it.“ (the vineyard which serves as Isaiah’s simile). Isaiah explains in the following verse: “But if he holds fast to My refuge, He makes Me his friend, He makes Me His friend.” The prophet means that if man, i.e. Israel, will cleave to Torah law then all will be well. This is also what the sages (Tanchuma) had in mind when they said that Israel would not have lost its independence had they not failed to observe the laws of the Torah and the maintenance of a fair judicial system. They were punished by what is described in Job 4,20 as “shattered between daybreak and evening perishing forever unnoticed.” This is what would happen if the ordinances G’d placed before the Israelites in our portion would be ignored by them. אשר תשים לפניהם; The word תשים is related (at least aurally) to the word סם, which can be a poisonous or therapeutic herb. If the משפטים would be observed they would act as the elixir of life, if not, as the reverse.

And these are the judgments that you shall place before them. Why is the section of laws placed next to the section of the altar? To tell you that you should place the Sanhedrin near the altar. This is how Rashi explained it. And in the tractate Sanhedrin (7b), Bar Kappara expounds: From where do we derive that which the Rabbis said, “Be deliberate in judgment”? As it is said: And you shall not go up by steps to My altar, and adjacent to it is written: And these are the judgments. And Rabbi Elazar says: From where do we learn that a judge should not step over the heads of the holy people? As it is said: And you shall not go up by steps, and adjacent to it: And these are the judgments. And since the Talmud used the term “expounded” regarding the words of Bar Kappara, but did not mention “expounded” regarding the words of Rabbi Elazar, this implies that Bar Kappara’s words are merely a homiletical interpretation, since the verse And you shall not go up by steps literally speaks about the altar, and judges are not mentioned at all. But the words of Rabbi Elazar are not a homiletical interpretation; from the plain meaning of the verse And you shall not go up by steps to My altar, we learn that the explanation is not to step over the heads of the holy people, as Rashi explained. And here we have an a fortiori argument [kal vachomer]: If regarding stones, which have no consciousness to be offended by disrespect, the Torah said, You shall not go up by steps — meaning, do not treat them disrespectfully — then regarding your fellow who is created in the image of his Creator and is offended by disrespect, how much more so should you be careful. According to this, without any homiletical interpretation, we learn not to step over the heads of the holy people through an a fortiori argument from stones. Nevertheless, Rabbi Eliezer also needs the juxtaposition of the sections, because without this juxtaposition, I might have said that only another person who is not a judge or important figure should not step over the heads of the holy people in a disrespectful manner, applying an a fortiori argument from the stones, since the commandment do not ascend by steps applies to ordinary priests who are not judges. But regarding a judge who needs to instill fear in the public so that his words will be heeded, one might have thought that he is permitted to step over the heads of the holy people. And you might say that the status of a judge is greater than that of a priest, and it is sufficient for the derived law to be like the source of derivation. Therefore, the juxtaposition teaches us: And these are the ordinances that you shall set before them, meaning those ordinances mentioned above that come from an a fortiori argument from the stones, not to step over the heads of the holy people — you shall set before them, that is, before the judges, to say that even the judge is included in this a fortiori argument. And Bar Kappara’s opinion is to interpret the verse and do not ascend by steps homiletically, that a judge needs to be deliberate in judgment. But his words require explanation, for what is the connection between steps and being deliberate? Even though Rashi tried to resolve this and explained by steps as meaning “in haste,” it seems he did not resolve anything, because one who ascends steps goes slowly, whereas one who descends is the one who goes quickly. And what seems closest to me to say about this is as follows, for any judge who does not judge with deliberation, it is due to his arrogance, as he wants to show everyone that he is knowledgeable in laws and knows how to compare one matter to another. And in his haughtiness, he will not seek out the content of the law from a book, and thus one who does not judge with deliberation is one who ascends the steps through pride and arrogance. This is what Rashi explained as “in haste,” for he quickly rushes his words to decide the law, and his heart is arrogant in instruction. But the verse says When I take the appointed time, I will judge fairly (Psalms 75:3). Specifically, when I take time and an appointed moment, and as it is said When my heart was fermented (Psalms 73:21) — meaning to let the judgment ferment — then my mind was sharpened. In any case, I find it difficult regarding Rashi’s explanation that the juxtaposition of these sections comes to teach that the Sanhedrin should be placed near the altar — from where did Rashi derive this? Perhaps the juxtaposition comes according to what Bar Kappara taught, or according to the words of Rabbi Elazar. Why did Rashi see fit to make a third interpretation and omit those two interpretations mentioned in the Gemara? Therefore, it seems to me that Bar Kappara and Rabbi Eleazar both hold that what is stated And do not ascend with steps upon My altar — the word al [upon/on] has two interpretations: both literally “on top of” which is the simple meaning of the verse, and also meaning “next to” as in the verse and you shall sacrifice upon it which Rashi interprets as “next to it,” similar to and next to him the tribe of Manasseh (Numbers 2:20). And we can learn the lower from the upper: just as upon him mentioned above means “next to,” so too upon mentioned below also means “next to.” The connection between these passages led them to this interpretation, because it says And these are the judgments with the connecting vav, which implies that above some statute and judgment was also given to the judges to instruct them in the way they should go. And regarding this it says And these, meaning in addition to the statute and judgment given to them above, you shall set before them these judgments as well. This raises the question: where above does it speak about the laws for judges? It must be that the place of the Sanhedrin is next to the altar, and above it states as a warning to those who sit next to the altar, And do not ascend with steps upon My altar — meaning next to My altar. And in this meaning, Bar Kappara and Rabbi Elazar disagreed, for Bar Kappara’s opinion is to interpret the verse in addition to its plain meaning, addressing those who sit at the altar, meaning near the altar: Do not ascend by steps hastily to judge without deliberation, in a manner of pride and arrogance, since you are sitting at My altar, near My altar which entirely teaches the virtue of humility. This is evident both because it is an earthen altar, and because the sacrifices of God lead to a broken spirit. So how could it enter your mind to conduct yourself with pride and haughtiness in this place which entirely teaches the virtue of humility? This interpretation follows the method of homiletical exposition [drash], since the plain meaning and the midrash do not speak of the same matter. Therefore, Rabbi Elazar came to explain this in a way where both the midrash and the plain meaning address the same matter. His view is to explain that the verse wants to caution the judge who sits near the altar: Do not ascend by steps to take steps in a coarse manner near the altar, for there is the seat of the Sanhedrin. And one who ascends there by steps is stepping on the heads of the holy people — meaning on those who are leaders of the holy people, namely the Sanhedrin. For according to its plain meaning, it is difficult: would one only be prohibited from stepping on the head specifically, while it would be permitted to step on the entire body? Rather, “on the heads” means on those who are heads [leaders] of the holy people. Without this connection, I would say that the verse Do not ascend by steps contains only its plain meaning. Also, the verse did not want to rely on the kal vachomer [a fortiori] argument that Rashi mentioned, for if so, how would we know that a judge should not step [over other judges]? For from a kal vachomer one can only learn about other people, but a judge might mistakenly say: “I too am a judge like him, and it is permitted for me to step over him.” Therefore, the juxtaposition [of verses] comes to negate this view. And we find that according to both Bar Kappara and Rabbi Elazar, we learn that the place of the Sanhedrin was near the altar. Therefore, Rashi explained what emerges from both their words. There is another warning regarding being deliberate, not to hastily decide a case due to the acceptance of any bribe, for regarding the term “shochad” [bribe], our Sages of blessed memory said (Ketubot 105b) that it is derived from the phrase “she-hu chad” [that he is one], meaning that the giver and the receiver become one like a single person. However, this explanation is not entirely satisfactory because the word “shochad” refers to the thing that is taken, not to the person who takes it. Therefore, it seems to me that “she-hu chad” means sharpness, from the expression iron sharpens [yachad] iron (Proverbs 27:17), because every finalization of a judgment is referred to by the Sages as “cutting the judgment.” One who is deliberate in judgment and does not cut it hastily resembles someone cutting with a knife that is not very sharp, which does not cut quickly. But when a judge receives something, his knife immediately becomes sharpened and he cuts the judgment hastily, no longer needing to be deliberate in judgment to clarify the truth, since his mind has already decided to justify the one who gave him [the bribe]. Therefore, the money is called “shochad” [bribe] because “she-hu chad” [it is sharp], as the money is sharp and cuts the judgment quickly. And if you prefer to apply the term “chad” [sharp] to the judge, then its meaning is that once the judge receives [a bribe] from one party, the judge immediately becomes sharp and clever, knowing at once which way the judgment leans, and such a case no longer requires delay or deliberation. Another explanation for why money is called “shochad” [bribe] is that it is “chad” [sharp], because our Sages of blessed memory said (Avot 5:11) that the sword comes to the world because of the delaying of justice and the perversion of justice. Therefore, this money is sharp like a sword and cuts like a sharpened sword. And the reason for placing the Sanhedrin near the altar will be explained shortly. Before them. And not before gentiles, even in a case where the nations judge according to the laws of Israel, etc. (Gittin 88b). This matter requires sufficient explanation. Let us preface this explanation with what we find in the Midrash (see Esther Rabbah 1:12) that on King Solomon’s throne there were six steps, and it was written on the first, Do not pervert justice, and on the second, Do not show partiality, and on the third, Do not accept bribes, and on the fourth, Do not plant for yourself an Asherah, and on the fifth, Do not set up for yourself a pillar, and on the sixth, Do not sacrifice to the Lord your God an ox or sheep which has a blemish. Any thoughtful person would be astonished at this sight: what relevance do these three prohibitions — do not plant, do not set up, and do not sacrifice — have to a throne prepared for one who sits in judgment? Is it merely because they are adjacent in the Torah that they were placed on the throne? It would have been more appropriate to write in their place he shall not increase wives for himself, he shall not increase horses for himself, and silver and gold he shall not increase for himself. From this, there is clear evidence that all these six prohibitions speak about matters of justice. And from where did King Solomon learn to say this? Surely he understood this from the juxtaposition of the section of Mishpatim [laws] to the section of the altar, indicating that the Sanhedrin should be placed near the altar. And what is the practical difference that God commanded to place the Sanhedrin near the altar? Certainly to teach wisdom to the people that whatever disqualifies the altar and what is offered upon it also disqualifies the Sanhedrin, specifically regarding the matters mentioned at the end of Parashat Yitro concerning the altar. And with this also resolved is what was the great need to command them on making the altar — understandably the laws were a necessity of the hour, but the altar was not such an immediate necessity since they had not yet been commanded regarding the Tabernacle. Rather, certainly for this reason the work of the altar preceded the section of Mishpatim to tell you that you should place the Sanhedrin near the altar so that they would learn from the altar that whatever disqualifies the altar also disqualifies the Sanhedrin. The first one is, as it says, And you shall sacrifice upon it your burnt offerings, etc. Therefore, it mentions here the sacrifices to tell you that just as a blemish disqualifies sacrifices, so too a blemish disqualifies members of the Sanhedrin, as is stated in tractate Yevamot 101a: Just as the court was clean in justice, so too they were clean from any blemish, as Solomon said, You are all beautiful, my beloved, and there is no blemish in you. And from where did they learn to say this? Is it not that we do not derive Torah laws from words of the Prophets [Tradition]? Rather, certainly King Solomon learned this from the juxtaposition of this section and from the juxtaposition of You shall not sacrifice (Deuteronomy 17:1), because in Deuteronomy everyone agrees that we interpret adjacent passages, even those who do not interpret them elsewhere. And therefore, he engraved on his throne the verse You shall not sacrifice to the Lord your God an ox or sheep that has a blemish, etc., because by this he indicated that all the Sanhedrin who sit on the seat of judgment were free of blemish, like the sacrifice. In the Torah portion of Emor (Leviticus 21:17), it will be explained, with God’s help, that any physical blemish is not so disqualifying in itself, but rather because it indicates some negative trait in the body, whether in animals or humans. Therefore, it is written which has a blemish, any evil thing, because the blemish indicates some evil thing as mentioned. For this reason, they were careful that the Sanhedrin [high court] members should be free from any blemish. Thus, they said: “Just as they were clean in righteousness, so were they clean from blemishes.” Why did they connect blemishes with righteousness? Certainly because one depends on the other. And by way of allusion, we can say that we learn the unclear from the explicit. It is written here blemish, and it is written there And if there is a blemish in it, lame or blind (Deuteronomy 15:21) — just as there it refers to lameness or blindness, so too here. From this, derive also regarding the blemish that disqualifies one from the Sanhedrin: it refers to one who takes bribes, for this leads to blindness, and to the perversion of justice, for he limps on his thigh and his foot does not stand on level ground; rather he wavers between two opinions and he totters. As it is written and takes no bribe against the innocent; he who does these things shall never be moved (Psalms 15:5). This implies that one who takes bribes totters, and a lame person typically totters. The second is, what he would write on his throne, And you shall not erect for yourself a monument [of a single stone], meaning to tell you not to judge alone, for only the Holy One, blessed be His name, judges alone. He also learned this from the adjacency of this section where it says, And if you make for Me an altar of stones. This implies specifically [an altar] composed of many stones and not a monument of a single stone. Similarly, the Sanhedrin, men of high standing who are called “crown stones” and “holy stones,” must specifically be many and not one. Rashi explains in the portion of Judges, which the Lord your God hates — it was beloved in the days of the Patriarchs, etc. And as an example of this regarding judging alone: in the days of the Patriarchs, the Holy One, blessed be He, was not so particular, because Shem and Eber and Abraham, Isaac, and Jacob judged alone. And so too Judah said, Take her out and let her be burned, which shows that he judged alone. Moses also judged alone before Jethro came, because they were perfect in their understanding and possessed knowledge from their Maker, and were not afraid of making errors. But as hearts diminished and continued to decrease, the Lord commanded not to judge alone. There is also an allusion in the stone altar, that the stones should be whole and not hewn; similarly, a judge should be perfect, without any blemish, without additions or subtractions, and should not need external beautification or adornment like a hewn stone upon which a sword has been raised, profaning it from its sanctity. The same reasoning applies to a judge who needs external correction, which gives place for the axe and the hewer to boast saying, “I appointed you, and on your own merit you are not worthy.” Therefore, it is good to choose whole stones that do not need external repair. Rashi explained that one can derive a kal vachomer [a fortiori argument] from stones, which neither see nor hear, etc., and because they bring peace, the Torah said You shall not raise iron upon them (Deuteronomy 27:5). One who brings peace between a man and his wife, or between a person and his fellow, how much more so will no calamity befall him. It seems that Rashi’s intention with this kal vachomer is to give a reason for the proximity of the Sanhedrin to the altar, because anyone who sits in judgment brings peace between a person and his fellow. And lest the judge fear anyone, that the one found guilty in judgment may pursue him, and the judge might want to remove himself from judgment to avoid harm, therefore the Sanhedrin sat near the altar, so they would learn a kal vachomer from the altar that no harm would befall them. And this is a precious interpretation. The third is, You shall not establish for yourself an asherah — our Sages interpreted (Sanhedrin 7b) about one who appoints an unfit judge, [if it is] in a place of Torah scholars, it is as if he planted [an asherah] next to God’s altar. Similarly, they interpreted the verse You shall not make with Me gods of silver, etc. as referring to a god or judge appointed because of silver and gold. The concept of the asherah we learn from what is written: An altar of earth you shall make for Me — either filled with earth or adjacent to the earth. From all this we can learn that the Sanhedrin should also be humble in mind, for every humble and lowly person diminishes his full height toward the ground. Therefore it says He guides the humble in justice (Psalms 25:9). But one who is arrogant in rendering legal decisions is a fool, wicked, and haughty in spirit, for he does not judge deliberately since he is embarrassed to ask about his uncertainties. It is known that sometimes an unfit judge is appointed because of his arrogance or the arrogance of his relatives and family who honor him so that he might be “fortunate” [meushar] in the land and bring them fame and praise, as suggested by the name “asherah” from the expression women have called me fortunate [ashruni banot]. Our Sages said (Sotah 5a) that anyone who has arrogance deserves to be cut down like an asherah tree, as it is written here and their asherah trees you shall cut down (Deuteronomy 7:5), and it is written there and the tall of stature shall be cut down (Isaiah 10:33). What is the connection between an arrogant person and an asherah? It is because this unfit person is established for the fortune and praise of his relatives, and he is like an asherah tree that has many branches and leaves to sit in its shade. Similarly, they appoint him as a judge so that his relatives can sit in his shade. But in truth, their protection has departed from them, and there is no need to elaborate further on this. And regarding what they said, “in a place of Torah scholars, it is as if he planted it next to the altar” — this is because that is where the Sanhedrin sits. For this reason they said, “before them and not before gentiles, etc.” because it is said Not because you are more numerous than all the peoples did the Lord desire you [and choose you, as you are the smallest] (Deuteronomy 7:7). And our Sages said in the tractate (Chullin 89a) that Israel diminishes themselves, unlike idolaters who are haughty and arrogant in spirit. Therefore, they are not fit for laws and judgments which they do not know, for their arrogance ruins all judgments. And evidence for all this is from the midrash of our Sages, brought in Yalkut Parshat Shoftim (907), which states: Judges and officers shall you appoint for yourself — This is comparable to a king who had many sons and loved the youngest more than all of them. The king had an orchard that he cherished more than all his possessions, and he gave the orchard that he loved to his youngest son whom he loved. Similarly, the Holy One, blessed be He, said: “Of all the nations, I love Israel, as it is said When Israel was a youth I loved him, and from Egypt I called My son (Hosea 11:1).” And it is written For the Lord loves justice (Psalms 37:28). He gave the laws to Israel. The Holy One, blessed be He, said: “If you observe the law, I am exalted, as it is stated And the Lord of hosts shall be exalted through justice (Isaiah 5:16).”One must analyze this midrash carefully, for it states, “This is comparable to a king who had many sons,” thus it refers to the nations as “sons” too. This is not explicitly stated in any verse. On the contrary, the verse states, from Egypt I called My son, which implies that only Israel is called “sons.” Also, from the statement “he loved the youngest more than all of them,” it implies that He loves the nations too, just not as much as Israel. This has no proof from Scripture; on the contrary, the verse states Yet I loved Jacob, but Esau I hated (Malachi 1:2-3). Furthermore, why did [the midrash] bring the verse When Israel was a youth I loved him as proof? Why not bring the verse I have loved you, says the Lord (ibid. 1:2) as proof? And I say that this entire midrash is built on the foundation of humility, to instill it in all who sit in judgment, because it is for this reason that it says before them and not before idolaters, for anyone who is arrogant does not judge deliberately and does not allow the judgment to ferment, to settle on its lees. And this is the meaning of the parable of a king who had many sons, and the analogy is not about the nations and Israel, but rather about all of Israel who are called the children of the living God. And of all of them, He loves the youngest — meaning, among all the sons, that is, among all of Israel, He loves more than all the others the “small one” who diminishes himself, who is humble and lowly — he is chosen to occupy the seat of God in the assembly of judges. Therefore, he brings proof from the verse For Israel is a youth and I love him (Hosea 11:1), meaning when he makes himself small like a youth and is unlearned, then the Holy One, blessed be He, loves him more than all the children of Israel. For the more humility is found in those below, the more the greatness of God, blessed be He, will be revealed and seen, because the humble restore the crown to its former place, to the Holy One, blessed be He, who is called the Ancient of Days (Daniel 7:9). For through this they acknowledge that He alone is clothed in majesty, and it befits Him and no other. Therefore, he brings as proof the verse And the Lord of Hosts shall be exalted in judgment (Isaiah 5:16) and says if you preserve judgment — which is related to the term “lees of wine” — meaning that your heart should ferment by judging deliberately, as it is written Keep judgment (Isaiah 56:1). It is also an expression of “lees,” for any liquid that stands still on its lees, the sediment sinks down and the liquid remains clear. Any vinegar has certainly stood for a long time on its lees, and because of this became vinegar. Regarding this it says Keep judgment for all judgment needs to be fermented and delayed until the lees — that is, the waste and confused opinions mixed in human intellect — sink down. And when they go down, his intellect will remain clear, pure, and clean without mixture, and then he will not come to error. Therefore it says keep judgment but charity should not be delayed; rather, if some poor person asks something of you, fulfill his request immediately. Therefore it says and do righteousness (Isaiah 56:1). All this will be explained further in the portion of Shoftim, with God’s help, on the verse Justice, justice shall you pursue (Deuteronomy 16:20), because the language of “pursuit” applies to charity and not to judgments. And this is the meaning of “if you keep judgment, I am exalted,” because one who judges deliberately certainly possesses the trait of humility, as he is not embarrassed to ask about his uncertainties or to examine a case for a long time until he brings forth a truthful judgment. And through the humility of those below, the Holy One, blessed be He, is exalted, as it is written And the man shall be humbled, and the person shall be lowered, and the eyes of the lofty shall be humbled. But the Lord of hosts shall be exalted in judgment (Isaiah 5:15-16). “And that which I said, ‘From all the nations I love Israel’” — this is not an explanation of the parable about a king who had many sons, because “many sons” refers to all of Israel. Rather, this is a separate statement, and the “mem” in “mikol” [from all] is not a “mem” indicating a superlative. He brought the nations as proof of His words, saying: Just as from all [mikol] the nations I did not love any nation at all except Israel alone that I loved, and the main reason for My hatred toward idolaters is because of their arrogance, for the Lord detests all the proud of heart — similarly, even among Israel who are called sons, I love more than all others the small one who makes himself small and regards himself as a youth and unlearned, for then he judges deliberately. And furthermore, the judge who is not haughty of spirit, he attends to small matters as well as large ones, as it is written You shall hear the small and the great alike (Deuteronomy 1:17). This excludes anyone who is arrogant, who does not attend to small matters. And for this reason, the author of this Midrash compared justice to a beloved orchard, because in any orchard, the owner of the orchard does not reveal which planting is more excellent than its companion, so that everyone will tend to all the plantings equally, as concluded in the Yalkut at the beginning of Parshat Eikev. And this is precisely the idea of You shall hear the small and the great alike, and this is a precious interpretation. “Before them.” And not before common [unqualified] people, as it concludes in Tractate Gittin (88b). The implication is as if it had already been mentioned in the verse that it speaks about ordained judges with wisdom. But where was this stated? Rather, it certainly relies on the section about the altar mentioned before this verse. We have already said above that we learn from the altar everything that is said about it, and whatever disqualifies something in the altar also disqualifies in judges. It said about the altar, And if you make for Me an altar of stone, you shall not build it of hewn stone but rather you shall build it of whole stones. Similarly, those who sit beside the altar should be whole stones that do not need fixing, excluding common people who need fixing, and even with all that effort, it will [only] maybe help. Just as He disqualified the nations because of their prideful hearts, so too He disqualified common people for this reason, because the most common person has more arrogance than an important person, and this way is known and well-trodden by many. Behold, the ways of the judges’ conduct, since we’re on the topic, let’s discuss it. Even though it’s not directly related to the section, but since the verse And these are the judgments is connected to the verse and do not ascend by steps to My altar, we can learn that the main corruption of justice depends on arrogance. As our Sages said (Avot 4:9), “One who is arrogant in rendering decisions is a fool, wicked, and haughty.” This means that the arrogance of his heart will lead to three corruptions. The first corruption is that his arrogance will lead him to foolishness, because he will not want to judge with patience, as it would be embarrassing for him, and through this he will mix up one type with another. The second corruption is that his heart will persuade him to compare himself to the Most High and to judge alone, making him wicked, who in the pride of his countenance does not seek God and All his thoughts are, “There is no God.”The third corruption is that he will adopt the trait of pride, becoming haughty not only in judgments but in all matters of wisdom he will expose himself. We find that the Men of the Great Assembly, when they saw the corruption of the judges of the First Temple — all this came upon them because the daughters of Zion were haughty — therefore they wielded the scepter of the Holy One, blessed be He, and said, “It is time to act,” to restore the crown to its former place, namely to the Holy One, blessed be He, who is called the Ancient of Days (Daniel 7:9). Therefore, they said three things: “Be deliberate in judgment” (Avot 1:1), so as not to be a foolish judge acting rashly, because perhaps one’s initial understanding is confused and mixed with sediments before they ferment, as explained above. And through this they restored the crown to the Holy One, blessed be He, as we explained above on the verse And the Lord of hosts is exalted in judgment. They also said, “Raise up many disciples”, so that one would not need to judge alone, as mentioned. And they further said, “Make a fence for the Torah,” so that one should not be haughty at all. For in all traits, it is good for a person to follow the middle path, except in the matter of arrogance, about which our Sages said (Sotah 5a), “Not even a little of it is good,” and as it is written (Avot 4:4), Be exceedingly humble in spirit, emphasizing the matter and leaning to the extreme end. This is the matter of the fence and boundary, for this trait needs more protection than all other traits. Therefore, they attributed this matter to one who is arrogant in rendering decisions, because perhaps in this trait he will permit himself to say, “It is good for me to behave with arrogance in order to impose my authority on the litigants, for through this my words will be heeded.” Therefore, it says that this is the counsel of the evil inclination, for eventually he will become arrogant in every matter in the world, even outside of legal judgments. These three things in their image and likeness, the psalmist Asaph collected them in Psalm 75, To the chief Musician, Al-taschith [Do not destroy], A Psalm Asaph, a Song. For the corruption of justice causes the destruction of the world, as the world stands on justice, and the destruction of the generation of the flood proves this. The psalmist wanted to mention the establishment of justice, therefore he said Al-taschith [Do not destroy] and said We give thanks to You, O God, we give thanks. The judges who are called “elohim” [gods/judges] will thank You for two matters. One is, Your name is near. For You stand in the divine assembly; in the midst of judges, God judges. The second, They tell of Your wondrous works. This is a language of concealment and wonder, referring to how You concealed the laws from all nations and tongues, and judgments they have not known. For the idolaters, in their arrogance, do not judge with patience, but I, when I select the appointed time, I will judge uprightly. Therefore, he added the word I to exclude idolaters and common people. The earth and all its inhabitants are dissolved. For whoever corrupts justice causes corruption to the foundation of the world, as stated in Psalm (82:2-5), How long will you judge unjustly… All the foundations of the earth are unstable. Therefore, it says here, I have set up its pillars firmly. And afterward, he mentioned “al” [do not] three times: I said to the boastful, ‘Do not boast’ — that’s one; And to the wicked, ‘Do not lift up the horn’ — that’s two; Do not lift up your horn on high — that’s three. And corresponding to them, he said “ki” [for/because] three times: For not from the east or from the west — that’s one; For God is the judge — that’s two; For there is a cup in the hand of the Lord — that’s three. And regarding what our Sages said, “One who is arrogant in issuing rulings is a fool, wicked, and haughty,” it says here, I said to the boastful, ‘Do not boast,’ meaning, do not be a fool who relies on his own wisdom and does not want to judge with patience. For no person is secure that perhaps there is a mixture of dregs in his intellect, for “to the boastful [lehollelim]” is a term of mixture, from the expression I said of laughter, it is mixed [mehollal], meaning mixed with sorrow. And here it refers to one who is mixed with foolishness; therefore, he needs to let it ferment so that he does not drink his wine with its dregs. And regarding what they said that a wicked person should not judge alone, likening himself to the Most High, it says here, And to the wicked, “Do not lift up the horn.” It mentions only one horn because it speaks of the wicked person who, in his arrogance, does not seek out his colleagues to take counsel in judgment but wants to rely entirely on himself. We can also say that the term and to the wicked does not refer to the judges but to the litigants standing before you like wicked people, and regarding them, Do not lift up one horn, for perhaps one judge cannot handle powerful litigants, and two are better than one. And regarding what they said that one who is arrogant in issuing rulings will eventually become haughty and will burst forth against all sound wisdom, it says here, Do not lift up your horn on high, for it is the nature of wind/spirit to rise upward, therefore it says regarding the haughty, Do not lift up on high. And afterwards he gave three reasons for these three, and with what he concluded, he began and said for not from the east, nor from the west, nor from the wilderness of mountains and it is concluded in Yalkut Parashat Matot (32.) that all mountains in Scripture are literally mountains except for this one which is a term of elevation. Thus, according to our way, he speaks about the haughtiness of the arrogant person, about whom he said do not raise your horns on high. For how can a person who is compared to vanity be proud when his beginning is from a putrid drop and his end is a place of dust, worms, and maggots? Behold, Solomon said about the day of death before the sun darkens (Ecclesiastes 12:2), implying that the time of his entry into the world is the beginning of the rising of his sun. Therefore it is said for not from the east, nor from the west — meaning he cannot claim that he has mountains and elevation from the east, that is, from the beginning of his formation, because on the contrary, he comes from and emerges from a putrid drop. And similarly, he has no mountains and elevation from the west, because on the contrary, at the setting of his sun, he goes to a place of dust, worms, and maggots. And if he says that between these two boundaries he has a place to be proud because of his Torah and his wisdom, about this it says nor from the wilderness comes elevation. And is there elevation from the wilderness? Behold, everyone tramples upon it. And in the tractate Eruvin (54a), our Sages of blessed memory said, “If a person makes himself like a wilderness that everyone tramples upon, the Torah is given to him as a gift.” This teaches that the Torah was given in the wilderness so that all who study it would be like this wilderness that everyone tramples upon. So how could it enter one’s mind to take mountains and elevation from the wilderness? Therefore I said, do not raise your horns on high. And then he said corresponding to what was written Do not raise a horn to the wicked. “By itself” [meaning] that he should not judge by himself. For this reason he gave an explanation and said Because God is judge, meaning that there is none who judges by Himself except for the Holy One, blessed be He, and it is in His hand to lower and to raise, and who can say to Him “What are You doing?” And afterward he said, corresponding to what is written, “I said to the boastful, ‘Do not boast.’” That one should not judge before the judgment has fermented, while his mind is still mixed with the dregs. Concerning this, he said, For there is a cup in the hand of the Lord, and the wine foams; it is full of mixture, and He pours from this. For the cup of the Holy One, blessed be He, is clean from all dregs, and He pours from this means to pour His spirit upon flesh, a pure and clean spirit free from all mixtures. But its dregs, all the wicked of the earth shall drain and drink. These are the boastful ones whose wine of intellect is mixed with dregs. And the wicked who do not judge with patience to let the judgment ferment are like those who drink wine while it is still mixed with dregs. The confusion and cloudiness of the intellect causes them to pervert justice. And I will declare forever. Since above he said of himself, I judge uprightly, he further gave a straight path before a man sitting in judgment, saying, I will declare forever/to the world — to speak harshly, like sinews, to the world, to both litigants. For when they stand before me, they are like wicked people in my eyes, and I will not fear the powerful litigant while the wicked stand before me, for I will sing to the God of Jacob who saved Jacob from one stronger than him and from his pursuers; He will save me also from the pursuer. Nevertheless, the wicked should not rely on this, saying, “Since he speaks harshly to my fellow litigant as well, perhaps my fellow also appears guilty in his eyes.” Rather, All the horns of the wicked I will cut off, but the horns of the righteous shall be exalted. For in the end, I condemn the wicked and vindicate the righteous. All that is alluded to in this psalm is alluded to in these brief words that our Sages interpreted: Before them — not before gentiles; before them — not before ordinary men. And the wise will hear and increase learning.

ואלה המשפטים, “and these are the ordinances, etc.” The introductory letter ו at the beginning of the word ואלה means that what follows must be understood as a continuation of what preceded it, i.e. the Decalogue. Alternately, what follows are new ordinances, continuing the laws which had been revealed already at Marah, where the Torah spoke of two types of laws that were taught to the people, i.e. חוק ומשפט. The reason why the Torah chose to follow this pattern is because at the beginning of the Decalogue G’d had first introduced Himself with the words: “I am the Lord your G’d, etc,” so here too Moses introduces all these laws by reminding the people that they had just recently experienced the revelation, In other words, all that follows originates with the same G’d as did the Decalogue. Moses’ words: אתם ראיתם וגו', corresponds to the first two commandments (i.e. the ones heard and understood by the people spoken to them by Hashem directly.) What follows under the heading of ואלה המשפטים corresponds to such commandments as לא תחמוד, indicative of the final and perhaps ethically most demanding commandment (as it tries to control our feelings and desires that are unspoken) If man does not know the legal aspects of private property, how can he be sure that he does not violate G’d’s will in this respect? This is why G‘d used the term תשים לפניהם, meaning that the laws following must be clearly set out for the people, must be elaborated on. No one must remain in doubt so that he cannot claim that what he coveted was not something belonging to someone else. אשר תשים לפניהם, ”which you are to set out before them.” Our sages (Mechilta) draw attention to the word לפניהם, meaning “before the Israelites,” but not before the gentiles or the common, uneducated people. Had the Torah wanted that Moses explain the details of the following legislation to unlearned people, it would have written a different formulation, such as אשר תלמדם, which you are to teach them, or אשר תשים להם, a formula used when Moses taught the people some of the laws at Marah. (Exodus 15,25) The expression לשום לפני וגו' is a standard phrase when the Torah means for something to be taught to the judges, the elders of the people. All litigants always have to appear before a quorum of judges, compare Deut. The judges are described as יודעי דת ודין, possessing knowledge in matters or ritual law and interpersonal relations requiring legal decisions. The reason the Mechilta understands the word לפניהם as excluding gentiles, is to warn Israelites not to have their disputes judged by a court composed of gentiles even if the laws of the gentile host country are similar to ours in that matter. Even if both litigants are agreeable to submit their dispute to a gentile court for a ruling, the Torah does not permit this. If, however these same Israelites agree to submit their dispute to three gentile laymen, (or more or fewer) this is acceptable as G‘d’s jurisprudence has not been slighted thereby. Rabbi Joseph Kimchi draws attention to the Torah not having said תשפטם, “you are to render judgment,” but תשים לפניהם, “submit before them,” as the Torah speaks of a situation when the basic halachic rulings were known to the parties. However, this is insufficient, as it allows the owner of a Hebrew servant to claim that had he known that this man’s services would be limited to 6 years, he never would have bought his services in the first place, and that therefore the entire transaction had been based on a misunderstanding. Or, for instance in the case of an ox goring a gentile servant with fatal results, for which the Torah fixes that the owner of the ox which gored has to pay 30 shekel, (a small and fixed amount) even if in the market place such a slave while alive could have fetched several times that amount. Pleading ignorance of the legislation is no reason to revoke transactions that had involved ignorance of the finer points of the law of compensation.

Everyone endowed with intelligence should know that it is not my purpose to explain halachic rulings as part of my commentary, something I have mentioned already in my commentary at the beginning of Parshat Vayeshev. I explained there that many such rulings are hinted at by variant spellings in the text, missing words or extraneous words. Many of these have been covered in the commentary on the Torah by my grandfather Rashi of blessed memory. I have set myself the task of only explaining the plain meaning of the text as it is before us. When I explain legislation I do so within the context of its contribution to civilised behaviour, דרך ארץ. My explanations notwithstanding, when they conflict with the halachic rulings, the latter are supreme.

ואלה המשפטים, “and these are the ordinances, etc.;” Rashi has pointed out that whenever a paragraph in the Torah commences with the word אלה, this signifies that it is not a continuation of something that had been written previously. However, when the paragraph begins with the word: ואלה, “and these, etc., it signals some kind of continuation. From Rashi’s words it would appear that the laws promulgated from here on in did not originate at Sinai as when the Torah wrote in Exodus 19,20 that Hashem descended to Mount Sinai, the whole point was that He did so in order to give the people the whole Torah. In order to solve this apparent contradiction, we need to view the word: פסל used by Rashi to signify a break with what preceded it, is to be understood as in Exodus 34,1 where G–d told Moses to hew himself two Tablets to replace the ones he had shattered after coming down from the Mountain for the first time. The act of “hewing” means to separate what you carve out from a greater quantity of the same base material, i.e. rock. In other words, what we are going to read from here on in are laws that, though of the same origin as the Ten Commandments, had been separated somewhat in time from when and how they were presented to the people. What Rashi meant to tell us was that if this paragraph had commenced with the word אלה, I would have thought that what followed was not of Sinaitic origin at all. In order not to mislead the reader, the Torah added the prefix ו to make clear that what follows was also of Sinaitic origin, i.e. G–d taught Moses all the Torah while he was on the mountain for forty days and forty nights. The letter ו here has the same meaning as the word את in Exodus 9,29, where Moses said: כצאתי את העיר, “when I go out from the city.” We find a similar construction in Deuteronomy 28,69: אלה דברי הברית, “these are the words of the covenant, ”where the admonitions have been separated from the blessings. The blessings in that paragraph had been preceded by curses. We find something similar in Deuteronomy 1,1: אלה הדברים אשר דבר משה, “these are the words which Moses had spoken, etc.” where we cannot understand this as something unconnected to what preceded it, but the letter ו is omitted as we are dealing with a different Book of the Torah, one that had not been dictated to Moses, but which G–d had approved after the event as deserving to be part of the written Torah. In Genesis 2,4 the words אלה תולדות השמים והארץ, “these are the generations of heaven and earth are separated from the prehistoric period when the Torah had described the tohu vavohu which had preceded the creation of light. לפניהם, “before them.” Rashi sees in this word an exclusion of gentiles, to whom all these ordinances will not apply, even if they would adopt our system of civil law. [Presumably, he felt that otherwise that word is superfluous, as it is obvious that the laws would be addressed to the |sraelites. Ed.] Jews are not allowed to submit their litigation to a gentile court even if the rules of that court are like those of ours. Our author uses a parable to illustrate the point. Imagine that two sick persons go to a physician to have themselves examined. The physician tells one of them to eat, heartily and healthily, whereas he tells the second one to abstain from some of the very foods he had encouraged the first person to eat from heartily. The reason is that not every food is good for everyone. What is good for one patient may be very dangerous for the next patient. When the physician advised the first patient to eat heartily, the reason was that that patient was diagnosed as fatally ill, so that he might as well enjoy the time left for him on earth. The same advice to the second patient would prove very dangerous for him. The same reasoning applies to Jews and gentiles. We read in Ezekiel 20,25 concerning the gentiles that G–d had given them laws and statutes that they could not live by, whereas the laws He gave to the Israelites were designed to be for their benefit. [This verse is extremely difficult, and the reader is advised to read the commentary by Rabbi M. Eisemann in the Art Scroll edition of the Book of Ezekiel. Ed.] Rashi assumes that when the Israelites fail to observe G–d’s laws, they will eventually attribute their hardships to G–d’s laws having been harmful. We are taught in the Torah that the opposite is true. Compare Leviticus 18.5. This is also the reason why we are forbidden to eat all kinds of creeping creatures, as they are injurious to one’s health. These same creatures, if eaten by gentiles, are not harmful to them. This is also the meaning of Psalms 147,19: מגיד דבריו ליעקב, חוקיו,”,משפטיו לישראל. לא עשה כן לכל גוי, “He issus His commands to Yaakov, His statutes and rules to Israel; He did not do so for any other nation;” The following is a true story involving the convert Onkelos, a nephew of the Roman Emperor Hadrianus, who when wishing to convert was afraid of the wrath of his uncle the Emperor. He told his uncle that he wished to engage in business, whereupon his uncle asked him if he was short of capital, in which case he was willing to help him out. He told his uncle that he wished to travel and find out which merchandise was both in demand and easy to obtain. His uncle told him to seek out a field which was presently in a recession so that he could invest at low prices and profit when market conditions would improve. As a result, he went to the land of Israel, at that time in a deep depression commercially, and studied Torah from the scholars prior to undergoing circumcision for becoming a convert. He was told that the words of Torah would only reside within him permanently if he circumcised himself first. He followed this advice, circumcised himself and studied a great deal of Torah. When Rabbi Eliezer and Rabbi Joshua saw him, they noticed that his facial features had undergone a great change. They concluded that this was not Onkelos who had studied the Torah. When he began to ask the scholars questions, they told him that this was the result. When he returned to his uncle the Emperor, the latter asked him what had brought about the change in his facial features. He told him that he had studied the Torah and had himself circumcised. Upon being asked who had advised him to do this, he said: “you have.” He explained that his uncle had told him to acquire merchandise which was in a depression and patiently wait until this merchandise would appreciate in value. He had visited many nations and not found a single one which was in such a state of depression as the Jewish nation, so that he became convinced that their fortunes would improve drastically. He quoted the prophet Isaiah 49,7 who had predicted this already more than five hundred years earlier. The Emperor slapped his face and asked him once more what had prompted him to convert to Judaism. He told him that actually, he had gone to study the Torah, but had been told that the condition for being taught Torah was that he had to be circumcised, just as Yaakov. He quoted Psalms 147,20 where it has been spelled out by the use of the word בל, that only the people of Israel had been endowed with Torah knowledge that could be retained. (Tanchuma, Mishpatim section 5)

When you purchase a slave who is a son of Israel, he shall serve for six years, and in the seventh he shall go free at no charge.

כי תקנה עבד עברי IF THOU BUYEST AN עבד עברי — This means a servant who is a Hebrew. Or perhaps this is not so, but it means a servant of a Hebrew (one who had been the servant of a Hebrew), i. e. a Canaanitish servant whom thou hast bought from an Israelite, and it is with regard to him that Scripture states “six years he shall serve”! — And if you ask, how I will then explain the commandment, (Leviticus 25:46) “and you shall leave them (the Canaanitish servants) as an inheritance for your children [and they shall serve you forever]”? then I reply, that this refers to the case of a Canaanitish servant who has been bought from a heathen; but if such a servant has been bought from an Israelite he shall go free at the end of six years! — This explanation that our text refers to a Canaanite servant will not hold, for Scripture states, (Deuteronomy 15:12) “and if thy brother an Hebrew man be sold unto thee [and serve thee six years, then in the seventh year thou shalt let him go free from thee]” — the Torah says, as it were, by using the two terms העברי and אחיך: I tell you this (that the servant shall go free in the seventh year) only with regard to thy brother! Consequently Leviticus 25:46 has to be applied to any Canaanite servant, whether bought from a Hebrew or from a heathen and עבד עברי in our text can only denote עבד שהוא עברי. (Mekhilta) כי תקנה IF THOU BUYEST [AN HEBREW SERVANT] — This means an Hebrew servant whom thou hast bought from the hand of the court which sold him for a theft which he had committed, as it is said, (Exodus 22:2) “if he (the thief) have nothing, then shall he be sold for his theft”. Or perhaps this is not so, but Scripture is referring to the case of one who sells himself as a servant on account of his destitution, whilst he who has been sold by the court for his theft shall not go free at the end of six years! This assumption it erroneous, for when Scripture states, (Leviticus 25:39, 40) “and if thy brother that dwelleth by thee be waxen poor, and he sells himself unto thee … [he shall serve thee unto the year of jubilee]”, it is plain that in this passage there is mentioned the case of one who sells himself on account of his destitution. How then must I explain כי תקנה in this verse? Obviously as referring to him who was sold by the court (Mekhilta). לחפשי means INTO FREEDOM (i. e. חפשי is a noun like חֹפֶשׁ but having a redundant י at the end).

IF THOU BUY A HEBREW SERVANT. G-d began the first ordinance with the subject of a Hebrew servant, because the liberation of the servant in the seventh year contains a rememberance of the departure from Egypt which is mentioned in the first commandment, just as He said on it, And thou shalt remember that thou wast a bondman in the land of Egypt, and the Eternal thy G-d redeemed thee; therefore I command thee this thing today. It also contains a remembrance of the creation, just as the Sabbath does, for the seventh year signals to a servant a complete rest from the work of his master, just as the seventh day of the week does. There is in addition a ‘seventh’ amongst the years, which is the jubilee, for seven is the chosen of the days [to be the Sabbath], and of the years [to be the Sabbatical year], and of the [seven] Sabbaticals [to be the jubilee]; and they all point to one subject, namely, the secret of the days of the world — from bereshith (in the beginning) till vayechulu (and they were finished). Therefore this commandment deserved to be mentioned first, because of its extreme importance, alluding as it does to great things in the process of creation. This is why the prophet Jeremiah was very stringent about it and said, Thus saith the Eternal, the G-d of Israel: I made a covenant with your fathers; At the end of the seven years ye shall let go every one his manservant, and every one his maidservant. And on account of its violation, G-d decreed the exile, just as the Torah decreed exile for the Sabbatical rest of the land which was not observed, as I will yet write, with the help of the Rock. When He finished stating the ordinance of this [first] commandment as it applies to Hebrew servants, He began the ordinance of the commandment, Thou shalt not murder, since it is the worst [sin] and then [He stated the ordinances of the commandments] to honor one’s parents, and of Thou shalt not steal, and then He went back to the ordinance of one who smites his fellow-man but did not kill him, and then to the murder of a bondman, which is worse than the killing of an offspring, and after that to [injury to] the limbs of Israelites and bondmen, and then to cases of death inflicted by cattle which cause injury. All the sections are thus arranged in logical sequence and in proper order.

"When you acquire" — I will state a general principle before I begin to expound: every ordinance and commandment each stands on its own. If we are able to find a reason why this ordinance is linked to that one, or this commandment to that one, we attach them with all our ability; and if we cannot, we consider that the deficiency comes from the lack of our knowledge. There is nothing harder for a person in the world than being under the authority of one like himself. Therefore Scripture begins with the law of the slave. Our early authorities said that the Hebrew slave is an Israelite, and likewise the case of "when a man sells his daughter as a maidservant" (v. 7). But "when a man strikes the tooth of his slave" (below, v. 26) refers to a Canaanite, and likewise "when a man strikes his slave" (ibid., v. 20), and likewise "if the ox gores a slave" (ibid., v. 32). And they said that "he is to be sold for his theft" (below, 22:2) — this too is an Israelite. Those who dispute this say that the Hebrew slave is not an Israelite but is rather from the family of Abraham, and likewise the daughter; and all the slaves mentioned afterward follow one rule. Their proof is the matter of the wife and children, since they say that family affiliation follows the father; and furthermore, "he shall serve him forever" (v. 6) — meaning, in their view, all his days — and it seemed difficult to them that an Israelite should be pierced. Now let us investigate the words according to their plain sense. If the Hebrew slave is not an Israelite, why does Scripture say: "When your brother, the Hebrew, is sold to you" (Deut. 15:12)? Do we not know that "you shall not hate your brother in your heart" (Lev. 19:17) means an Israelite, and likewise "between a man and his brother and his sojourner" (Deut. 1:16), and many such cases? There is no doubt that "Abram the Hebrew" (Gen. 14:13) means he is from the descendants of Eber — of whom it is written, "the father of all the children of Eber" (Gen. 10:21) — in contrast to "Ham is the father of Canaan" (Gen. 9:18); or he is called "Hebrew" because he came from across the river (עֵבֶר הַנָּהָר), even though he should rightly have been called עִבְרִי נְהָרִי. We may think that Scripture used an abbreviated expression, since we find: "I took your father Abraham from across the river" (Josh. 24:3). Now, the Israelites too came to be called Hebrews; for we see that Moses said to Pharaoh, "Thus said Hashem, God of Israel" (above, 5:1), and when Pharaoh asked who this Hashem was, they answered him, "Hashem, God of the Hebrews" (ibid., v. 3). Thus "God of the Hebrews" is the same as "God of Israel." Now, if Israel are called Hebrews because they are descended from Eber, then the children of Ishmael and the children of Keturah and the children of Esau would share that designation with us — yet we find that only Edom is called "your brother" (he who shared a womb with Jacob). Moreover, you will not find in Scripture that Esau is mentioned as our brother in the context of commandments — only in matters of diplomacy, as in "You shall not abhor an Edomite, for he is your brother" (Deut. 23:8), said after the word "Edomite" is already specified; and likewise "because he pursued his brother with the sword" (Amos 1:11). Throughout all of Scripture we do not find the word "Hebrew" used except of the children of Jacob: "there was with us a Hebrew youth" (Gen. 41:12); "the Hebrews to eat bread" (Gen. 43:32); "striking a Hebrew man" (above, 2:11); "two Hebrew men fighting" (ibid.); and Jonah said, "I am a Hebrew" (Jonah 1:9) — for they had asked him, "Of what people are you?" (ibid., v. 8), and if the word encompassed many peoples, he would have had to answer more specifically which people he was. And it is written: "lest you serve the Hebrews" (I Sam. 4:9), and "the Hebrews were with the Philistines" (ibid., 14:21). In Jeremiah it is written: "to release each man his slave... the Hebrew and the Hebrewess" (Jer. 34:9), and at the end it explains: "not to enslave them — a Judahite, each man his brother" (ibid.); and it is well known that an Edomite is not called a Judahite. The dissenters said: "But behold, it is written, 'and many of the peoples of the land converted to Judaism (מִתְיַהֲדִים)' (Esther 8:17), and they are not of Israel." But this is blindness — for in their own view, whether the meaning is that they affiliated themselves with Judah or that they adopted the Torah of Judah, one would expect the text to say "not to enslave among them a convert (מִתְיַהֵד) — his brother"; and on this logic the Hebrew (עִבְרִי) should have been called מִתְעַבֵּר, and the one who says this would be one who "meddles in a quarrel not his own" (Prov. 26:17). It has thus been established that the words of our early authorities are correct, and upon them we rely in all the commandments as they received them from their fathers. Furthermore, how could it enter a person's mind that the Ishmaelite or the Edomite should serve six years while an Israelite would serve until the jubilee year? — "Six years he shall serve" — and no more, just as "six years you shall sow your field" (Lev. 25:3); and at the beginning of the seventh year from his sale he goes free, whatever year that may be. Do not be troubled by "at the end of seven years" written in Jeremiah (Jer. 34:14), for every matter has two ends, and sometimes "end" (קֵץ) designates the beginning, and sometimes the end. This slave is the one of whom it is written "he shall be sold for his theft" (below, 22:2), whom the court sells. But "when your brother grows poor and is sold to you" (Lev. 25:39) — or to a sojourner — he sold himself in proportion to the years remaining until the jubilee, for at the jubilee he goes free. It is a received tradition in Israel that a male is sold for his theft but not a female; I will complete this topic in the next passage. — R. Marinus said that the yod of לַחָפְשִׁי is an appended letter, as in לְמַשְׁעִי (Ezek. 16:4) and אַכְזָרִי (Prov. 11:17). R. Judah the Grammarian said that the lamed is appended, as in "when you send him away free" (וְכִי תְשַׁלְּחֶנּוּ חָפְשִׁי, Deut. 15:13), and the yod is as if for attribution — like הַקַּדְמוֹנִי (Ezek. 10:19); the lamed is like the lamed in "the third to Absalom, son of Maacah" (I Chron. 3:2). In my opinion, both suffixes are used together, with one being sufficient, as in בְּתוֹךְ הָאֹהֳלִי (Josh. 7:21) — it is an adjectival form. — The word חִנָּם is from the root חנונו אותם (Judg. 21:22), in the sense of a gift; and the reason for the mem we do not know, like the mem of רֵיקָם (Gen. 31:42).

כי תקנה עבד עברי, "When you purchase a Jewish slave, etc." Perhaps the meaning is: "when you are about to buy a slave, buy a Jewish slave (rather than a Gentile)." You should not buy a Gentile because you know you can keep him indefinitely. The reason the Torah refers to the slave as עבדי instead of ישראלי, may be that the Torah is sensitive about combining the words עבד and ישראל. The Torah also wants us to know that the term עבד when used as applicable to a Jew denotes a temporary status only, seeing that all Jews are permanently G'd's servants. This is one of the reasons such a Jewish servant must leave his master in the seventh year. The Torah also hints that unless a Jew had violated the Torah's commandments he would not find himself in the position of being a slave. Kiddushin 14 in particular states that the Torah speaks of a thief who was unable to make restitution and who has been "sold" by the court in order that the proceeds of the sale be used to compensate his victim. Even in a situation discussed by the Torah in Deut. 15,12 when the subject has sold himself, he did not find himself in such a desperate situation had he not previously violated Torah law. Rabbi Ami tells us in Shabbat 55 that afflictions have always been preceded by sins committed by the individual afflicted. Another nuance in the words עבד עברי instead of עברי עבד, "a Jew as a slave," is a reminder to the purchaser that the individual in question was an עבד already before the present master had purchased him. The idea is that he was already guilty vis-a-vis Heaven. The court would not sell him until he had been convicted. As a result we need not have any misgivings about the term עבד עברי being used by the Torah in this instance as opposed to Deut. 15,12 where the Torah characterises the "slave" as אחיך העברי, "your brother the Jew." The term עבד had to be used by the Torah to justify why he has to serve his master for six years and cannot leave his employer like ordinary employees. שש שנים יעבוד, he shall serve for six years, etc. The Torah means that even if the slave escaped during these six years he has to complete the term remaining from the original six years. The reason the Torah does not write: "he has to serve you," (i.e. the purchaser) is to allow for the slave to complete the six years if the original master has died and he has now become the property of the son. ובשביעית יצא לחפשי חנם, and in the seventh year he leaves to become free without payment. The Torah means that there are occasions when said slave has to serve also in the seventh year such as when he has been sold in the middle of a calendar year. The six years are counted as commencing the day he is sold. The Torah also indicates by this verse that if the "seventh year," i.e. the שמטה occurs during the six years the slave has to serve, his term of service remains unaffected by that fact. I have found this in the commentary of Maimonides on Kiddushin chapter 1, Mishnah 2.

כי תקנה עבד עברי, “If you acquire a Jewish slave, etc.;” the reason why the Torah commences its list of social laws with this particular law is that the Israelites had recently been redeemed from slavery themselves, so that they had good reason to understand how important it is not to treat one of their own as they had been treated in Egypt. Even if an Israelite had committed a crime for which he had been sold, the maximum length of time he was allowed to have his freedom to choose his employer restricted was six years. Even during these six years, his master, who did not own him bodily even then, was not allowed to force him to perform menial tasks. כי תקנה, “when you purchased etc.” Rashi explains that the “slave” the Torah speaks about was not purchased at a public auction, but was acquired as a servant from a duly elected Jewish Court whose task it also is to ensure that a thief’s victim is compensated by his victim. If he cannot do so from his own means he is “sold,” i.e. his labour is sold for a maximum of six years, his victim being paid the wages that this servant would earn during the next six years if he had not been “sold,” and is given by the court to his victim. [This editor has rounded out the picture based on the Talmud, for the benefit of readers totally unfamiliar with this subject.] There was some discussion in the Mechilta if our verse deals with an Israelite who had fallen on hard times and accumulated debts that he could not repay and who “sold himself,” (based on Leviticus 25,39). According to that view an Israelite “sold” by the court would not automatically be able to terminate his employment after 6 years maximum. This view is in apparent contrast with what the Torah wrote in Deuteronomy. According to Leviticus 25,46, gentile slaves who are owned bodily by Jews may be inherited by their children. The words ונמכר לך, “and he has been sold to you,” refer to an Israelite “sold” by the court. The Torah continues by decreeing that such a “slave” must not be required to perform menial tasks for his “master.” Clearly, this rule does not apply to gentile slaves whose bodies are owned by their Israelite masters. Deuteronomy 15,12 makes it quite clear that the law of releasing a slave after 6 years applies only to Jews who have been sold by the court. The passive form of yimacher, is absolutely clear. The Mechilta does not disagree, but derives the rule from a different type of exegesis. The author there (Rabbi Yishmael) uses a method known as gezeyrah shaveh. [I have slightly abbreviated our author’s presentation of this subject. Ed.] שש שנים יעבוד, “he is to serve for six years.” The number “6” in this verse is viewed also as an allegorical reference to six empires that at one time or another will enslave the Jewish people. They are: “Egypt, Ashur, Babylon, the Medes, the Greeks, and the Romans, (descendants of Edom). According to this interpretation, after the collapse of the Roman Empire the Jewish people, [as a whole, Ed.] will not again experience enslavement. This is based on the end of the verse: “and in the seventh year he will be released unconditionally.” יעבוד, “he will serve.” The word refers here to ordinary household chores etc., not to backbreaking labour. ובשביעית, “and in the seventh year;” at the beginning of his seventh year of service. The reference is to the beginning of the seventh year after this servant had been “sold.” and not to Shemita-Seventh Year. This is true both for the Jew who has been sold by a Court and for the Jew who sells himself because of his extreme poverty. Release at the onset of the Jubilee year applies to any Jewish slave who has not yet completed his six years of service, as well as to the slave who has voluntarily extended his servitude “forever” by having his ear pierced on a door post (Exodus 21.5-6). יצא לחפשי, “he will exit to freedom.” G-d, so to speak, is quoted as saying: “I have redeemed the Israelites from Egypt from the house of slavery (Exodus 20,2). My intention was that they will henceforth be free men. They are therefore not “free” to sell themselves into servitude.” This is the meaning of Leviticus 25,10: “for the Children of Israel are My servants.” My document proving that they are Mine has preceded anyone’s subsequent document, which is thereby rendered legally invalid. לחפשי, some commentators claim that the letter ל at the beginning of this word, meaning “to” is superfluous, just as that letter is superfluous in Chronicles I 3,2: והשלישי לאבשלום, which means nothing other than והשלישי אבשלום, “the third: Absalom.” Here too the Torah had to write only: יצא חפשי, “will go free.” The letter י in the word חפשי, is a preposition just as in the word: הקדמוני in Ezekiel 10,19, which converts that word to mean: “which is at the eastern gate.” It is similar to the words: שלישי, רביעי, “third, fourth, etc. Other commentators understand the prefix letter ל in לחפשי as converting its meaning to a noun: “לחופש, to freedom.” They compare it to expressions such as “to דרור.” If so, then the letter י at the end of the word: לחפשי would be superfluous, just as the letter י in the words: ,היושבי, המגביהי המשפילי in Psalms 23,1, 113,5 and 113,6 are superfluous. [seeing that there we deal with poetic form of expressions, it is not fair to declare these words as superfluous. Ed.] The word: חנם, “without compensation to the master,” is the Torah‘s way of informing us of this condition. חנם, without bureaucratic delays such as a document proving that the “slave” had been released by his master. Neither did he have to compensate the master for any hours of work not actually served during any part of those six years (such as the time when he was sick).

כי תקנה עבד עברי “if you will purchase a Hebrew slave, etc.” The reason the Torah commences with legislation involving rules about how to treat a Hebrew slave is because the Israelites had only recently emerged from all being slaves, albeit to masters of another nationality. This legislation is also a reminder of the Exodus from Egypt. The essence of the liberation of the Jews from Egypt was to exchange their masters. Whereas prior to the Exodus they were enslaved to a mortal master, a cruel one at that, ever since the Exodus they became the charge of an eternal Master, the most kind-hearted imaginable. By liberating the Jewish people from a cruel fate G’d had established a claim to their loyalty, much as He had established an especial claim to the loyalty of the Jewish firstborn who had been exempted from the slaying of the firstborn. Just as G’d had mentioned the fact that He had taken the Jewish people out of Egypt as the reason for claiming obeisance as their sole owner, (Leviticus 25,55) “for the Children of Israel are My servants,” so mention of this fact in the first of the Ten Commandments provides the justification for legislation regulating treatment of Jewish servants. This legislation is also a reminder of the fact that the Lord created the universe, as the Sabbath is the foremost reminder of that fact in the Decalogue. Just as free men are to rest every seventh day as an acknowledgment of their Creator who created the world in seven days, so the Jewish servant is no less obligated to devote the Sabbath to His master in heaven rather than to devote it to his master’s deputy, his employer on earth. The number seven permeates Judaism in more ways than one. Not only the seventh day, but the seventh month as well as the seventh year all have special significance. This special meaning of cycles of seven years culminates in the Yovel legislation which concludes a cycle called עולם, “forever,” in the words of the Torah (Leviticus 25,20). The term Sabbath is not reserved exclusively for the seventh day, but is also applied to the seventh year, the year when agricultural work is suspended. שש שנים יעבד, “he shall serve during six (consecutive) years.” The Torah speaks of a servant who has been “sold” by a Jewish court in settlement of debts incurred through thefts or robbery of things he has not been able to return to the owner (Mechilta). The Torah refers to this indirectly in 22,2: “if he does not have (money for making restitution) he will be sold to pay for his thievery.” When the Torah uses the expression יעבוד to describe the labor to be performed by such a servant, this is misleading as it reminds us of the conditions under which the Jews labored in Egypt. The fact is that this servant is in the category of a hired hand (except that the master paid his salary six years in advance to the people to whom said servant was indebted). In fact the letter ו in the word יעבוד is missing in the Torah to signal that such a Jewish servant is not to be treated like a slave, but that he must not be assigned demeaning tasks or burdensome chores. The Torah (Leviticus 25,40) specifically writes: “like a hired hand or a resident he shall work with you.” Just as a hired hand is given only tasks which represent his specific skill, so such a Jewish servant is to be assigned only tasks with which he is familiar. Just as a resident is not expected to work at night, so a Jewish servant may not be assigned night work. (Mechilta on: “six years he shall work”). ובשביעית, “and in the seventh year,” this is the seventh year after he has been sold; the Torah had already written that he is to work for six years. לחפשי, “to freedom,” he does not require a document showing that he has been released from service by his employer. חנם, “by himself.” If the servant took sick during the period of his (forced) employment the employer cannot demand to be reimbursed for working hours lost, nor can he demand to be reimbursed for medical treatment for which the employer laid out the money. In short, the word חנם means that no money will change hands at the time this servant leaves the employ of his master (Mechilta). This rule applies provided that the servant was not sick for more than three years out of the six. If he was sick for three years or more, he has to make up time lost by working it off. This is based on Isaiah 16,14: “in three years, fixed like the years of a hired hand.” Seeing that this servant has been compared to a “hired hand” in Leviticus 25,40 it follows that the minimum amount of service he must render is three years (compare also Tosafot Kidushin 17A.).

“When you acquire a Hebrew servant.” The reason for beginning all the laws with the release of a servant to freedom after six years is because the Ten Commandments begin with I am the Lord your God, who brought you out of the land of Egypt, out of the house of bondage. Here it says, just as you were a servant and freedom was given to you because I redeemed you from the house of bondage, so shall you proclaim liberty and freedom to your servant who is sold to you for his theft. For you too were sold because of the theft of Joseph, whom the tribes sold, and this led to your descent to Egypt, to the house of bondage, and nevertheless you were set free. So you too, including your servants, shall set them free. And regarding what is written using the term “Hebrew” [Ivri] and not saying “your brother” or “Israelite”, and similarly in the portion Re’eh (15:12) it says, When your Hebrew brother or sister is sold to you. This is because all of Abraham’s descendants were from “across the river” [Ever HaNahar], and there our forefathers were idolaters from ancient times. And after they entered under the wings of the Divine Presence, they were called by the name “Israel.” And this sinner who is sold due to his theft is called by the name Hebrew because he has taken up the ways of Abraham’s forefathers. And the term Hebrew [Ivri] also alludes to one who transgresses [over — עובר] a sin, and even though he has sinned and transgressed, nevertheless “he is your brother.” Therefore it says your Hebrew brother, etc. But regarding one who sells himself, who has not sinned, it says (Leviticus 25:39), When your brother becomes impoverished without qualification, and it does not say “the Hebrew.” Some say that this is why it states “Hebrew slave, [eved Ivri, literally a slave that is Hebrew],” to indicate that he is already a slave before you acquired him, because the decree of the Holy One, Blessed be He, comes first, as it is stated: For they are My servants (Leviticus 25:42). And regarding what it says, And if the slave says… — because he repeated his folly, it does not mention him with the name “Hebrew.” And the reason for six years he shall serve — some say that the standard term for a hired worker is three years, as it is said: And the glory of Moab shall be brought into contempt, within three years, as the years of a hired worker (Isaiah 16:14). And a double hired worker’s wage was imposed upon him because of the penalty of the double payment [for theft]. But others say this is not so, for it is said in another place: Within a year, according to the years of a hired worker (Isaiah 21:16), and its interpretation is a precise year, and this is how Rashi and the Radak interpreted the verse And the glory of Moab shall be brought into contempt. And perhaps the reason is corresponding to the three thefts he committed: his master’s money, his master’s trust, and the Divine will. Corresponding to these, he works for three years, and because of the double payment penalty, another three years. And some say that this is like all the sevenths that were chosen for rest, to commemorate the creation of the world, like the Sabbath, the Sabbatical year, and the Jubilee, for every seventh is chosen for rest. And this [explanation] is more correct and reasonable to accept.

כי תקנה עבד עברי, ”When you acquire the services of a Jewish labourer,” Nachmanides writes that the reason why the Torah commences the legislation following with this example of the details of setting such a labourer free from his obligations vis a vis you in the seventh year, is that this law contains reminiscences of the Jewish experience in Egypt. This is why the Torah (in Deut. 15,15) writes: “you shall remember that you were a serf in the land of Egypt and the Lord your G’d set you free; this is why I command you this thing this day.” In addition to the reminder of the bondage experience of the Jewish people in the legislation containing the treatment of Jews performing forced labour, there is also a reminder of the 6 days of Creation followed by the Sabbath, the same cycle (in terms of years) applies to the period that a man who has sold himself, or been sold by the Court, has to serve out his term with the same master. The element of the sanctity of the seventh time seven years surfaces once more if said servant voluntarily extends his term of service for the same master. The entire legislation reflects symbolisms, seeing that the number seven surfaces as something intrinsically holy, or as something to be sanctified in terms of years or multiples of shemittah cycles. This is also why the prophet Jeremiah 34,13 warns the Jews that they will be punished with exile (becoming slaves again) for collectively violating the law which required them to release their servants not later than after 49 years, i e in the Jubilee year, as well as the law governing the abstention from working one’s land or orchard every seventh year. The Torah continues with laws governing murder or killing through negligence, which is the most serious of crimes committed against one’s fellow man, followed by the laws about not treating parents with the respect due them, even bodily harming them, followed by the laws about stealing property, etc., one after another in logical sequence.

כי תקנה עבד עברי, the Torah speaks about a Jewish thief who did not have enough money to make restitution (compare Exodus 22,2, “if he is unable to make restitution he will be sold in settlement of what he stole.”) שש שנים יעבוד, this applies to the thief who was sold by the court. The case of someone who had to sell himself (his labour) is discussed by the Torah in Leviticus 25,39 under the heading of כי ימוך אחיך ומכר לך, “when your brother has fallen on economically hard times so that he had to sell himself to cover his debts, etc.” Concerning that situation the Torah adds that he goes free in the Jubilee year (verse 40 there) In our situation, the term he is sold for is 6 years. Some of our sages (Kidushin 14) hold that both situations are halachically similar based on a gezeyrah shavah, identical wording being used by the Torah in both examples, i.e. the word in question being the unnecessary word יעבוד in Leviticus 25,40. ובשביעית, the seventh year after he was sold, not the seventh year of the Shmittah cycle. יצא לחפשי, the word lachofshi, a participle of a verb, means “without having to pay compensation;” had the word described the state of liberty of the “servant” now released, the word should have been vocalised lechofshi with the semi vowel sheva under the letter ל.

כי תקנה עבד עברי, “if you acquire a Hebrew servant;” according to Rashi, the scenario described here is that a thief who did not have the means to compensate his victim for what he had stolen, has been “sold” (i.e. the value of his labour for six years) by the court which had convicted him. [A Jew’s body cannot be sold by any court. Ed.] The procedure has been described in Exodus 22,2. Alternately, the person described in the Torah here has fallen on hard times and has sold his labour for six years to a “master” in order to pay off his creditors. If he had been “sold” by the court he does not automatically leave his master’s employment at the conclusion of six years service. Thus far Rashi on above verse. The problem is what prompted Rashi to write that someone sold by the court does not automatically conclude his service at the end of six years? We have a verse in Deuteronomy 15,12, according to which if someone who is a Jew or Jewess, has been “sold” to you, his contract is valid for six years be he a male or a female. He is to be released at the end of that period, and his master is to provide him with a minimal stake to enable him to establish himself economically from that point. (verses 13-14 there) Clearly, that verse and its provisions do not apply to someone who had “sold” himself but had been “sold” by the court. Rashi there also comments that the person in question had been sold by someone other than himself. We must assume therefore that Rashi was explaining the commentary of the Mechilta, according to which the words: כי תקנה apply to the son or daughter of the original master, who had died during these years. The question is whether the contract can be inherited by the master’s children, or in the event that the master did not leave behind any children, whether whosoever inherits the master’s estate this includes the unexpired period of such a servant’s contract. In the event that such a servant had been “sold” by the court would the contract expire automatically with the death of the original purchaser? The wording in Deuteronomy, כי ימכר לך, “if he has been sold to you,” as is distinct from the wording in our verse where the master is described as actively acquiring the servant, i.e. כי תקנה, suggest that the two situations described are not identical. In Deuteronomy the period of service is spelled out as being six years, adding that in the seventh year such a servant has to be released unconditionally, whereas in Exodus, in our verse the Torah adds the same clause. In Deuteronomy the word (unnecessary) ועבדך, “he shall serve you” is added. This reference to “you” is absent in our verse here. In Leviticus 25,39, where the subject of an impoverished Israelite selling himself is first raised, the Torah does not speak of a term of 6 years but a period concluding with the Jubilee year, a year when all such forced sales of land or labour are automatically reversed. If such servants are not released until the Jubilee year, it stands to reason that they continue serving the son or daughter of their master if he passed away before the onset of the Jubilee year (once in 50 years). This means that the verse we are dealing with, commencing with the words: “when you acquire, etc.,” must apply to someone who had been sold by the court. If the Torah, in dealing with the acquisition of a Jewish servant, had only written the one verse on the subject in our portion, I might have thought that such a “servant” would have to continue serving upon the death of his master either his son or even his brother. To prevent us from misunderstanding this, the Torah had to write when speaking of a servant who had been sold by the court: כי ימכר לך אחיך, “when your brother has been sold to you,” and it had to add: ועבדך שש שנים, “and he has to serve you, (the purchaser) for six years.” This excludes any service to an heir of the purchaser. We therefore find that on the one hand the text implies something additional, and on the other hand it implies something less. The Rabbis therefore interpreted the addition as being the heir if he is a son or a daughter, but excluding the brother in the event the master did not leave behind a son or daughter in the event that the servant had been sold by the court. We find in the Talmud, tractate Kiddushin, folio 17 that the Talmud asks what forces us to include as heir the son, while at the same time excluding the heir when he is a brother, i.e. not a direct descendant. The answer given is that a son takes the place of his father when it comes to inheriting landed property or a maidservant whom the father may assign to his son to inherit as maidservant, (wife) when of age. (Compare Leviticus 27,20 and Talmud tractate Erchin folio 25.) [At this point our author refers to Rashi saying that the whole concept of the servant leaving his master’s forced employment is a chidush, something not derived from standard methods of interpreting the Torah’s laws, and he proceeds to suggest that it could be a g’zeyrah shaveh, an accepted method of interpretation. As I have not found in my editions of Rashi, any reference to his saying that there is a chidush, I’ll skip this. Ed.]

If he entered alone, he shall go out alone; if he was a married man, his wife shall go out with him.

אם בגפו יבא IF HE CAME IN BY HIMSELF — This means that he was unmarried — as the Targum renders it אם בלחודוהי, if he came in “alone”. The term בגפו is the same as גף) בכנפו being synonymous with כנף wing, skirt) i. e. he came in only just as he was, alone, merely wrapped in his garment: so that בגפו, “in his skirt”, means “in the skirt of his garment”. בגפו יצא HE SHALL GO OUT BY HIMSELF — This intimates that if he was unmarried originally (when he came in), his master is not allowed to give him against his will a Canaanitish handmaid with the object of raising slaves (Kiddushin 20a). אם בעל אשה הוא IF HE BE MARRIED to an Israelite woman (Mekhilta), ויצאה אשתו עמו then HIS WIFE SHALL GO OUT WITH HIM — But who brought her in (into the state of service) that the text has to state she shall go out? But by saying this Scripture intimates that he who acquires a Hebrew servant is bound to provide his wife and children also with food (Mekhilta; Kiddushin 22a).

THEN HIS WIFE SHALL GO OUT WITH HIM. Rashi commented: “But who brought her in, that Scripture need say that she shall go out with him? But [by saying this], Scripture tells us that he who acquires a Hebrew servant is obliged to provide for the food of his wife and children.” This is a Midrash of the Sages. Now [even though the children are not mentioned in this verse, but only his wife,] the Rabbis have included the children together with the wife in this duty of the master, on the basis of what is written further on, Then he shall go out from thee, he and his children with him. I am not clear on this law as to whether the earnings of the woman and children belong to the master during the time he is supporting them. It appears to me that the master takes the place of the husband [in this respect]. For the Torah had compassion on the wife and children, whose lives are hanging in suspense, and who expect [to be supported from] the husband’s earnings, since now that he is sold as a servant, they are in danger of being lost in their misery. Therefore the Torah commanded the master who is now entitled to the servant’s labor, to act towards them as he [the servant] would. If so, the master only has to assume the responsibilities of the husband, [and no more]; thus he is entitled to their labor as is the husband, and in return he must feed and support them. This is the meaning of the expression, then his wife shall go out with him, since the servant’s wife was together with him as a handmaid to his master, for the labor of both of them belongs to him, in return for which he is obliged to give them food. Thus the only difference between husband and wife is that the wife has a right to go away as she pleases, [and is not bound to work for her husband’s master if she does not want to be supported by him, whilst the husband, who is the servant, is bound to the master]. Similarly, the master’s obligation to support the children is limited to the time that the father is responsible for them, namely when they are minors, or as long as is customary to feed them, as Rashi explained in Tractate Kiddushin. All this is out of G-d’s compassion for them [the wife and children], and for the servant as well so that he should not die in his anguish, in the knowledge that whilst he is toiling in a strange house, his children and wife are neglected. Now even though he is not obliged by law of the Torah to support them, as has been explained in the Talmud, Tractate Kethuboth, but since it is the normal way of life for a man to support his wife and small children, G-d in His mercies commanded the buyer [of the servant] to act to them as a merciful father. The meaning of the Sages in speaking of banav [literally: “his sons”] is both sons and daughters. I have seen written in the Mechilta: “I might think that the master is obliged to support the betrothed [of the servant] and the childless widow of his brother who is waiting for him to marry or reject her? Scripture theref...

"In his person alone" (בְּגַפּוֹ) — Some say בְּגַפּוֹ is like בְּגוּפוֹ, "in his body," and we find גּוּפַת שָׁאוּל (I Chron. 10:12); the patterns of nouns vary. Others said it is like כָּנָף, "wing," and in the Aramaic translation כָּנָף is rendered גַּפִּין — as if it means "by the wing of his garment alone." But this does not fit the sense of the passage, for the correct interpretation can only be that no other body is dependent upon him. It would then resemble: "upon my back the plowers plowed" (גַּבִּי, Ps. 129:3). — The Gaon said: Scripture needed to state "if he came in alone, he shall go out alone," since it says he goes free on account of the matter of his wife — which requires stating whether he is married — and since an Israelite woman is not sold by the court for her theft, what is the reason to say "and his wife shall go out with him"? It is to teach that the purchaser of a Hebrew slave must provide for his wife, and she remains with him until they go out together.

אם בגפו יבא, If he enters the service as a single man, etc. Our sages in Kidushin 20 conclude from this wording that if the Jewish slave enters his period of slavery while unattached, his master is not allowed to asssign a Gentile slave-woman to cohabit with him. The legislation permitting this applies only if said slave is already married. I believe the reason they came to this conclusion is that the sages were bothered by an anomaly in the text. The Torah appears to repeat itself when it says that if the slave entered service married he shall leave in that state. Seeing the Torah had already said that if he entered service unmarried he will leave unmarried, this implies that if he had been married previously he could leave with his wife. Why did the Torah have to spell this out? You will find that the sages scrutinised the verse and said that the words "and his wife will leave" are quite inappropriate. His wife, after all, had never become a slave! Why does she need the Torah's permission to leave? The sages therefore interpreted these words to mean that while the slave was in the service of his master the master had to provide also for the needs of the slave's wife. Once the slave leaves, this obligation is at an end. If the Torah had meant that the slave-woman the master had assigned to the slave could leave with him, this would contradict the clear statement in verse four that any wife and children born by such a woman during these years will most certainly not be released with their husband/father. What then did the Torah mean when it said that the slave's wife may leave together with him? The sages therefore arrived at the conclusion that only a married slave may be assigned a slave-woman to cohabit with. Clearly the statement was intended to provide an additional halachah. The word בגפו means "if he has no Jewish wife." We know this because when the Torah speaks of a man married to a Jewish wife the man is called בעל אשה. The words בגפו יצא mean he is to leave unmarried, as single as he entered the service of his master. One may also understand this as a comparison to when he entered, i.e. "just as he entered service without wife and children, neither the kind that could depart with him nor the kind that had to remain behind with his master, he leaves as he came." If he had a wife but no children at the time he entered the service of his master, the latter cannot assign a Gentile slave-woman to him either as we would consider him as having entered service בגפו, alone. The same applies even more so if the slave had been the father of children at the time he entered the service of the master although he had not had a wife at that time. I have seen that Rabbi Eliyahu Mizrachi feels that the reason for the legislation just mentioned is that otherwise the Torah should have written merely כן יצא instead of בגפו יצא. I do not agree with this. On the contrary, had the Torah written what Rabbi Mizrachi suggested as an alternative this would hav...

אם בגפו יבא, בגפו ילך, according to the plain meaning of the text the meaning is: “he will leave in the same condition as when he had begun his term of service.” The Torah proceeds to illustrate this by quoting examples of how his personal status might have changed during these six years. Even though his master might have given him a gentile slave to live with and to have children with, the “wife” and children remain the property of his master. בגפו יצא, “he will leave alone.” According to Rashi, the line means that if this “slave” entered service while single, he will also leave while single. If he had been married before, his master can give him a gentile slave for the duration of his service. The reason is that if his master were to “give” him a gentile slave of his as a “wife,” and he would have children with her, he might grow so fond of her and her children, that at the end of the six years he would choose to remain with his master rather than to rejoin his Jewish wife. The chances of this happening to married man, is more remote. He presumably longs for his former family life, and he will leave as soon as is legally possible. His plea of preferring his gentile “family” under such circumstances is not acceptable by the Torah. ואם בעל אשה, “but if he was married, to a Jewish wife“ at the time the court had ‘sold’ him,” his wife will leave with him; the wording means that he had consummated the marriage before being sold, not that he was only engaged, or that he was betrothed to the widow of a brother who had died without ever having had children. On this verse Rashi explains that the purchaser of a Jewish “slave,” is legally obligated to assume responsibility for said “slave’s” wife and children if any. Although nothing of that kind is written here, seeing that the Torah only writes that “he will leave with his wife,” Rashi deduced it from a verse in Leviticus 25,41: ויצא מעמך הוא ובניו עמו, “he together with his children will leave.” In that verse no mention is made of his wife. We combine both verses in order to get the true meaning of the Torah.

אם בגפו יבא, “if he shall arrive by himself, etc.” If he was single at the time he commenced his service he is not allowed to marry a Jewish girl while in the employ of this master seeing he is financially unable to provide the minimum material comforts for a wife which the Torah stipulates a bride is entitled to (compare verse 10). Seeing that he cannot marry during the years he is in service the Torah had to add: “he will leave alone.” His master may also not give him a Gentile slave-woman as a wife seeing he had entered service without any wife (Kidushin 20) The Torah stipulates that his marital status when he leaves must be the same as when he enters such forced employment. [Verse 4, which describes the master as giving him a Gentile slave-woman, who, however, remains with the master when the Hebrew servant leaves, applies only if he had entered service as a married man. Ed.] Another meaning of the word בגפו is that it means בגופו, “whole in body.” The verse tells us that he is to leave as he came, i.e. as opposed to the Gentile slave who is automatically freed when he loses certain organs such as an eye, a tooth, or even the bones of his finger tips (Kidushin 20). A Hebrew servant can buy his freedom by one of four methods: 1) completion of six years service. 2) advent of the Jubilee year. 3) death of his employer. 4) compensating his employer for unexpired time of service (such as when he inherits money). If said Hebrew servant had his ear pierced because he expressed a desire to remain in service, he has only two options by means of which he can free himself. 1) the advent of the Jubilee year. 2) death of his employer (Kidushin 14). A female Hebrew servant can free herself by one or more of five ways: (the methods already mentioned plus reaching the age and signs of puberty). She is not subject to having her ear pierced in order to extend length of her service with her employer as is her male counterpart.

אם בגפו יבא, “if he enters service as a single individual,” a reference to his body גוף being unattached. Marriage can be perceived as the reuniting of two bodies separated at the time the first woman was separated from the body of the first man, Adam. Alternately, it means that this person did not own anything but his body, hence he was sold into service for his debts. אם בעל אשה הוא, “if he was married at that time, etc.” if he was already married to a Jewish woman, his master may assign a non Jewish woman to be his mate. If, however, he had not been married yet, his master must not assign a non Jewish woman for him as a mate. The psychology underlying this legislation is that a normal person does not feel at ease with his fate unless he shares his life with the first woman who became his mate. If the first woman who became his mate is a gentile, he will most likely be so attached to her that even after his term of service he will not want to part from her although she is bound to her master for life. If the same servant had been married before his labour was sold for six years to the same employer, he is likely to yearn for his wife, and will not choose to remain with his master until the Jubilee year. ויצאה אשתו עמו, “his wife will leave together with him.” From this verse we deduce that the servant’s master had obligated himself to look after the needs of the servant’s wife and children. (not voluntarily, but this was part of the contract the Torah has in mind).

אם בגפו יבא בגפו יצא. The Torah first mentions the subject in general terms, then proceeding to details. For instance, if the servant was unmarried at the time the court sold him, or even if his master has given him a wife while he was in his employ, he leaves without his wife seeing that the woman given to him as a wife remains in the house of the master, her employer. Having said this, the Torah continues to explain how this works אם בעל אשה הוא, if he was already married, his wife (who will also be a charge on his master) will leave with him when he is released from this involuntary contract after 6 years. However, if his master had provided him with a wife during the period of his forced employ, the wife in question remains with her master. The “wife” the master had assigned to his Jewish servant was a gentile servant maid whose body belongs to her master.

ויצאה אשתו עמו, “his wife will leave that master’s employment with him (at the same time). Rashi asks correctly, granted that we have been told that his wife leaves with him, but where did we hear that this applies to his children? As an answer he cites the Talmud, tractate Kiddushin folio 22, that we learn from this verse that the master of the servant of which the Torah speaks here is obligated to look after the servant’s wife’s and family’s needs, if he had such when he was sold to him. Whereas it is clear that the master has to look after such a servants’ wife, it does not appear clear from the text that he is also obligated to look after the children of such a servant. We need to find a nuance in the text that would support this contention. Our author therefore suggests that this can be found in Leviticus 25,41, where the subject is someone who was forced to sell his labour as he had fallen on hard times, debts, etc; the Torah there states that the “master” must release both him and his family in the Jubilee year, showing that there is an unnecessary word. The word שכיר appears both in Leviticus and that same word appears again in Deut. 15,18. The scholars that do not accept this g’zeyrah shaveh as something that is traditional, but simply consider (Talmud Kiddushin there) the phrasing of the verse as sufficient.

If his master gives him a wife, and she bears him sons or daughters, the wife and her children shall belong to her master, and he shall go out alone.

אם אדניו יתן לו אשה IF HIS LORD HAS GIVEN HIM A WIFE — From this we learn that if he has already an Israelite wife the master has the right to give him a Canaanitish handmaid with the object of raising slaves. Or perhaps this is not so, but Scripture by אשה is speaking about an Israelite woman?! Scripture, however, states: “the wife and her children shall be the master’s”, consequently the text can only be speaking of a Canaanitish woman, for a Hebrew maidservant goes free at the end of six years just as a Hebrew man-servant does — yea, even before the termination of six years she goes free if she shows symptoms of incipient puberty (cf. Rashi v. 7) — for it is said, (Deuteronomy 15:12) “[and if] thy brother, an Hebrew man, or an Hebrew woman, [be sold unto thee, and serve thee six years, then in the seventh year thou shalt let him go free from thee]”, which statement teaches you that a Hebrew woman also goes free after six years’ service (Mekhilta; Kiddushin 14b).

IF HIS MASTER GIVE HIM A WIFE. “Scripture is speaking of a Canaanite woman. Or perhaps this is not so; but Scripture here speaks only of an Israelite woman?! Scripture therefore says, the wife and her children shall be her master’s. Consequently, it must be speaking of a Canaanite woman.” This is the language of the Beraitha taught in the Mechilta. Now Rashi wrote [in explanation of this Mechilta]: “For a Hebrew maidservant also goes free at the end of six years [just as a Hebrew manservant does], or even before the end of six years if she shows signs of puberty, for it is said, If thy brother, a Hebrew man, or a Hebrew woman, be sold unto thee, he shall serve thee six years.”But this is not quite correct. For if we say [as the Beraitha above attempted to,] that the verse here speaks of an Israelite woman, it could no longer refer to the case of a father selling his minor daughter, about whom the law is given that when she shows signs of puberty she goes free, for how could the master give her as a wife to his Hebrew servant, since he has no power to hand her over to any other man [except to designate her to be his own wife, or that of his son — as is explained further in Verses 8-9]! Similarly, the proof that Rashi mentioned, namely that she also goes free at the end of six years, is only so in accordance with his own words which he wrote that a person who sells himself [on account of his destitution] is sold for a maximum of six years; but in the Talmud these are the words of a single Sage [Rabbi Eliezer], but the accepted opinion is that one who sells himself can be sold for six years or more. Now if so, the case of a woman who goes free at the end of six years can only be when her father sold her [as a minor, but in that case the master has no right to give her as a wife to his Hebrew servant, but only to designate her as his own wife or that of his son]!But that which the Rabbis have said [in the Beraitha above, on the basis of the verse, the wife and her children shall be the master’s]: “Consequently, Scripture must be speaking of a Canaanite woman” — the meaning thereof is as follows: Since He stated, the wife and her children shall be the master’s [it must be speaking only of a Canaanite woman], for the children of a Canaanite bondmaid are the master’s since her child has the same status as she does, but in the case of an Israelite woman — even if she were of age [in which case her master could give her to his Hebrew servant as a wife], and even if we were to say that a woman may sell herself as a maidservant — her children are the father’s [not the master’s].

"If his master gives him a wife" — We find that the masters of the Hebrew language show honor in the domain of nouns but not of verbs. They say אָדוֹן, and also אֲדוֹנִים in the singular sense — "under harsh masters" (אֲדוֹנִים קָשֶׁה, Isa. 19:4); in the construct they say אֲדוֹנָיו and not אֲדוֹנוֹ, for the latter is not found. In direct address the speaker says אֲדֹנִי שָׁאַל (Gen. 44:19), and it is forbidden to say this in the plural form lest it be confused with the honored Name. Likewise it is not proper to say to the Name the singular form with the pronominal suffix אֲדֹנִי שָׁאַל. Similarly regarding the word אֱלוֹהַּ: R. Marinus said, its strength is expressed in לֶאֱלָהוֹ (Hab. 1:11) and not לֵאלֹהָיו — this would be contemptuous. — "If his master gives him a wife" — according to our Sages this woman is a Canaanite; and it is possible to interpret "Canaanite" as referring to: "also from the children of the resident aliens who sojourn among you" (Lev. 25:45), as it is written "from them you may buy a male and female slave" (ibid., v. 44) — and thus all the Canaanite slaves. For concerning the seven nations it is written: "you shall not let any soul live" (Deut. 20:16), and concerning Solomon it is written: "from the nations of which Hashem said, they shall not come among you nor shall you come among them" (I Kings 11:2) — which refers to Sidonian and Hittite women, but not to Moabite or Ammonite women.

אם אדוניו יתן לו אשה, If his master gave him a wife, etc. Why did the Torah switch to indirect speech when it had commenced the paragraph with direct speech i.e. "when you buy a Jewish slave, etc.?" The balance of the whole paragraph is in the third person. At the very least the Torah should have concluded the paragraph in the manner it began, by addressing the people concerned directly. Perhaps the reason is that we have a tradition that marriages are made in Heaven, i.e. that G'd personally involves Himself to match the right man to the woman appropriate for him (compare Bereshit Rabbah 68). At first glance one is tempted to interpret the words אם אדוניו as a reference to his true Master, i.e. G'd. The Torah would then tell us that if G'd to whom we are all servants assigns a wife to this man then both she and her children belong to her Master, i.e. G'd. This interpretation is untenable, however; this is why the Torah adds that the wife and her children belong to her master (terrestrial master) whereas the husband (the slave) leaves without them. We also need to know why the Torah repeats the words אמור יאמר העבד in verse five. The true meaning of these verses is that G'd commands something which at first glance sounds irrational, i.e. that if the slave entered the employ of his master while single, he must remain so during the years of his service. His master cannot assign a female slave to him under circumstances other than those listed in Kiddushin 20. The average reader will question the meaning of this legislation asking what difference does it make if the slave had been married or not, seeeing the Torah permits his living together with a Gentile slave anyway? The Torah answers this question by writing: "if his master will give him a wife" (clearly a Gentile woman as one can see from the context) both she and her children will remain with the master, whereas the slave himself will leave as single as he entered the service of this master. This section of the verse speaks about a master who would (illegally) provide a single slave with a Gentile slave-woman as his partner. When such a situation arises it is natural that the slave will not want to leave the employ of his master ever, (after the six years have expired) for one of two reasons: 1) He loves his wife and children; 2) he will once again find himself unattached when leaving the employ of his master. In other words, leaving his master's employ will result in the slave suffering two blows of fate. In view of such considerations, nearly every slave will want to remain in the service of his master forever. The Torah wanted to head off such a situation. This is why the Torah forbade the master to assign a slave-woman to a slave who had entered his service as a single man. If the slave already had a Jewish wife, a free woman, he will find it much easier to abandon the woman assigned to him by his master while he was in such forced service. The conditional אם in verse four is merely a p...

אם אדוניו יתן לו אשה, “If his ‘master’ will give him a wife;” according to Rashi, the “wife” is a gentile slave of his master, and this verse is the halachic source that this is not only permitted, but that he may insist on his servant having a woman with whom he, and only he, performs marital union. (Mechilta, chapter 2, on this verse) The logic according to our author appears to be that seeing that the master is at any rate obligated to provide for the Jewish wife and children of such a “slave,” he may recover some of the expense giving this Jewish “slave” a Canaanite slave-woman and the children from such a union shall remain his property. Targum Onkelos adds to his translation that the master is not permitted to “give” a female Jewish salve to such a “slave”, as no Jewish woman may be forced to marry someone. If the “slave” had married a Jewish slave of his master during his stay there she will leave with him without the master receiving any compensation. Rashi points out here that proof that the master has no control over the body of a Jewish slave is that the Torah legislates that if such a Hebrew slave sold by her father reaches earlier than usual puberty, she immediately can leave her master. He quotes 21,7 as well as Deuteronomy 15,12 as his proof. האשה וילדיה, “the woman and her children;” children are always mentioned after their mother; Compare Psalms 116,16: אני עבדך בן אמתך, “I, Your servant, son of Your servant maid.”

If his master gives him a wife. Only at a time when he is already married is his master permitted to give him a maidservant. Some say the reason is that if he is not married, there is concern that he might say, I love my wife, the maidservant. But if he is already married to an Israelite woman, there is less concern because his soul is already attached to the love of the Israelite woman. And some say the reason is that if he is married, his master is obligated to provide food for his wife and children, so no master would want to buy him and burden himself with this yoke. Therefore, to balance this, the Torah gave the master the right to give him a maidservant to bear slaves from her. But if he is not married, he has many potential buyers anyway. And perhaps there are additional considerations regarding the nullification of the commandment to be fruitful and multiply, because if he is married, he fulfills this commandment with the Israelite woman, and the Torah was not concerned about his involvement with the maidservant as well. But if he is not married, he would neglect the commandment to be fruitful and multiply, and his seed would be wasted on the unfit maidservant.

אם אדוניו, “if his master etc.” here the Torah authorises the master of this Hebrew (unmarried) servant to give him one of his Canaanite slave-women as a “wife” to have children with, provided he had previously been married to a Jewish wife. If this “servant” had previously not been married, he cannot force him to enter into such a relationship with a Canaanite woman. This ruling is based on the words in verse 3: אם בגפו יבא בגפו יצא, ”if he came as a bachelor, he will leave as a bachelor.” The reason underlying this legislation is that if he had previously been married to a Jewish woman he will not feel attracted to a Canaanite slave woman.

But if the slave should plainly declare, 'I love my master, my wife, and my children — I will not go free,'

את אשתי MY WIFE — the Canaanitish handmaid mentioned above.

"And if he says" — Our early authorities have already explained this: he cannot be pierced unless all these conditions are met — "because he loves you and your household" (Deut. 15:16).

ואם אמר יאמר העבד, “and in the event that the ‘slave’ will say insistently, etc.;” from this verse we learn that he must express this wish already during those six years, and repeat it at the end of his term of service. העבד, the Torah means that such a person deserves to remain a “slave,” as his actions reflect the kind of actions that the Canaanites are known for. If someone prefers the status of servitude, abandoning his choices in life, he acts like Canaanite slaves.

ואם אמר יאמר העבד, “if the servant shall say.” In Kidushin 22 the sages use the repetition of the word אמר as proof that unless the servant expresses this wish twice the employer is not entitled to pierce his ear to extend his period of service in his employ. The word העבד [which does not appear necessary in our context as the subject did not change. Ed.] means that he must express this desire before his period of service expired, i.e. while he was still an עבד (ibid.) אהבתי את אדוני, “I love my master.” Unless the relationship is one of mutual love the law of extending the servant’s service by piercing his ear is not applicable. This is based ion the words כי טוב לו עמך, “for it is good for him with you,” (Deut. 15,15) (Kidushin 22). If the master is sick while the servant is in good health, this law is also not applicable seeing that the word עמך presupposes some parallel condition between servant and master. If the servant were to be sick while the master is in good health the law would also not apply as the Torah writes כי טוב לו, “for it is good for him,” and a sick servant is not good for his master. את אשתי ואת בני, “my wife and my children.” If said servant does not have both wife and children he may not have his ear pierced and continue in service (Kidushin 22). If he requested to serve additional time with this master already at the beginning of his term of service he may not subsequently have his ear pierced and stay on. He must formulate his request near the end of his six year term of service (ibid.).

“I love my wife and my children, I will not go out free, etc.” The reason for piercing the ear, as Rabbi Yochanan ben Zakkai explained: The ear that heard at Mount Sinai You shall not steal and then went and stole, should be pierced… (Mechilta 34). People ask about this: why isn’t the ear pierced immediately when the court sells him or when he sells himself? In my opinion, it is more reasonable to say that he is punished in his ear as explained (in Bava Kamma 79b): Why did the Torah treat a thief more severely than a robber? Because the thief did not give equal respect to the servant [man] and to his Master [God]. He acted as if the Eye Above doesn’t see and the Ear Above doesn’t hear, etc. Therefore, it is just that he should be punished in his ear because he sinned against the Ear Above [God’s hearing]. This explains why he is pierced more than any other wrongdoer, because according to Rabbi Yochanan ben Zakkai’s reasoning, it would be difficult to understand why he wouldn’t be pierced for every transgression in the Torah. One cannot ask why his eye isn’t also punished, because that would blind him and render him unfit for work. However, for one who sells himself due to poverty, there is another reason: because as long as he is a servant to servants, he must incline his ear to hear his master’s voice, and he removes his ear from hearing God’s voice since he is under the authority of others. This is unlike one who is sold for his theft, as he is compelled in the matter because the court sells him. Nevertheless, it is difficult [to understand], let the thief be immediately pierced [in the ear], even if he has the means to pay, and similarly, let one who sells himself be immediately pierced at the time of sale. The answer to this matter is that a person is not judged with two judgments, for any thief who has [means] will pay double, and then he has received his judgment and is exempt. And if the court sells him for his theft, his punishment is servitude. Similarly, one who sells himself due to his financial pressure is also compelled by the great distress that brought him to this measure. But the Torah has also given him one thing across from the other, the option to go free after six [years]. Yet of his own good will without any compulsion at all, if the servant says, I love my wife and my children; I will not go out free — behold, he chooses to be a slave to slaves and turns his ear away from hearing the voice of God, then it is just that he should be struck in his ear. And one who is sold for his theft also needs another punishment beyond servitude, because it is retroactively revealed that servitude is not any punishment for him, as he still chooses servitude because it is good for him with you. And where is his punishment for You shall not steal and for For the children of Israel are servants to Me and not servants to servants (Bava Kamma 116b)? Therefore, he is pierced in the ear, for with this he is exempted from these two transgressions, as one punishment applies to both. This reason is sufficient according to Rabbi Yochanan ben Zakkai, and it also explains why he is not pierced immediately, even according to his words. The reason for piercing specifically at the door and doorpost is that after six years, the Torah opened a door for him to go from slavery to freedom, and the door turns on its hinge, but the lazy person does not want to leave. It’s like someone sitting in prison and they open a door for him saying “Go, escape!” Yet he chooses the imagined benefits he has, because it is good for him with his master in food and drink, so he leaves the door open and doesn’t want to exit. It is right that he should be pierced at the door or on the mezuzah which has inscribed on it the passage You shall love the Lord your God, while he says “I love my wife and my children.” He is exchanging love of the Blessed God for love of his wife, the maidservant. Therefore, he should be pierced at the mezuzah. Additionally, every free person has the ability to fulfill what is written Watching at my doors day by day, to guard the doorposts of my entrances (Proverbs 8:34), but this person is watching at his master’s doors and turns his ear away from hearing God’s voice to be watching at His doors. Therefore he should be pierced there, to say: “Because of your bad choice, you are fixed here and shall not move from here again.” There is another reason for piercing the ear, following what our Sages said (Kiddushin 70): “Anyone who marries a woman who is not suitable for him — Elijah binds him and the Holy One, blessed be He, pierces him.” Even though Rashi interpreted “pierces him” to mean “lashes him with a strap,” nevertheless it seems more correct to me to say that He pierces him with an awl. And this matter we learn from the law of this slave who says, I love my wife referring to the unfit maidservant. For although the Torah gave permission to his master to give him a Canaanite maidservant, nevertheless, the Torah also gave him [the slave] the opportunity to remove this disgrace and blemish from himself and to go free. However, when he says, I love my wife the maidservant, and does not want to leave her, then it is as if at that moment, of his own good will, he is marrying this unfit woman. Therefore, he is punished in his ear, because no other organ feels this disgrace as much as the ear does when it hears the whispers of many people around saying, “This is your unfit wife and these are your flawed children.” And from here extends this law to anyone who marries an unfit woman. There is another reason for piercing the ear, for it would be appropriate that he should be punished in his entire body, but the Torah had mercy on him that he should be punished in one limb that is equivalent to his entire body. For one who cuts off his neighbor’s hand pays him the value of his hand, blinds his eye pays him the value of his eye, deafens him pays him the value of his entire body, as is concluded in Bava Kamma (85b). Beyond all these reasons, there is in this matter a proper allusion to all the blind ones in the camp of the Hebrews who bear on their shoulders all their days all kinds of servitude, hardships, and pains in order to acquire illusory possessions, and to those possessions he is sold as a permanent slave. And he claims that he is forced to deal with silver and gold for the sake of his wife and children, and that he accumulates for them, and does not seek freedom all his days, and he accepts and takes upon himself all the hardships saying I love my wife and my children, I will not go free, freedom engraved [charut herut] upon the tablets, “for I am bound in the cords of man and in the bonds of love for a wife and children.” And therefore he is called a pierced slave, because all the days of his life the man will not rest until he has spent his days in vanity and his years in haste and various troubles one after another, and when he dies, his wife and children will not accompany him except to the entrance of his grave, and from there they will part, as it says in Pirkei d’Rabbi Eliezer in the parable of the three lovers, etc. (Chapter 34). Therefore it is said regarding this generic slave, and his master shall bring him to the judges. To the place of judgment, for in this they hint to every person that in the future on the day of judgment, his wife and children, about whom he said I love my wife and my children, will not come to his aid. For they do not love him so much, and on the contrary, they will leave him at the door and outward, and there sin will crouch at the door, and from the door outward they will not enter with him to advocate for him. And this is a proper allusion and a secret of the mysteries of the Torah.

his master shall bring him before the judges, and 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 as a slave forever.

אל האלהים means to the court. He (the slave) should take counsel with his vendors (the court) because it was they who sold him to him (the master) (Mekhilta). אל הדלת או אל המזוזה TO THE DOOR OR TO THE DOORPOST — From this statement you might think that the doorpost is also a proper thing upon which the servant’s ear may be pierced! Scripture, however, states, (Deuteronomy 15:17) “[Then thou shalt take an awl], and thrust it through his ear and into the door” — into the door but not into the doorpost. If this be so, what is the purpose of Scripture stating here “[to the door] or to the doorpost”? By this juxtaposition it only compares the door with the doorpost. What is the characteristic of the doorpost? It is something perpendicular! So, too, the door must during the act of performation be in a perpendicular position (on its hinges), not detached as, for instance, lying on the ground (Mekhilta; Kiddushin 22b). ורצע אדניו את אזנו במרצע AND HIS LORD SHALL BORE HIS EAR THROUGH WITH THE AWL — “His ear” means his right ear. Or perhaps this is not so, but Scripture means his left ear? Scripture however uses the term אזן here and it uses אזן in another passage, thereby suggesting an analogy based upon verbal similarity; viz., here it is said “and his lord shall bore his ear (אזנו) through”, and of the leper it is said, (Leviticus 14:25) “and the priest shall put it upon the tip of the right ear (אזנו הימית) of him that is to be cleansed”. — How is it in that latter passage? It is the right ear! So here, too, it is the right ear. — What is the reason that the ear had to be pierced rather than any other limb of the servant’s body? Rabban Jochanan ben Zaccai said: That ear which heard on Mount Sinai, (Exodus 20:13) “Thou shalt not steal” and yet its owner went and stole and was therefore sold as a slave — let it be pierced! Or, in the case of him who sold himself from destitution, having committed no theft, the reason is: That ear which heard on Mount Sinai what I said, (Leviticus 25:55) “For unto Me the children Israel are servants” and yet its owner went and procured for himself another master — let it be pierced! (Mekhilta; Kiddushin 22b). Rabbi Simeon interpreted this verse like a jewel (i. e. giving it an ethical signification): In what respect are door and doorpost different from all other objects in the house that they should be singled out for this purpose? God, in effect, said: door and doorpost that were eye-witnesses in Egypt when I passed over the lintel and the two doorposts, freeing Israel from slavery, and when I said, (Leviticus 25:55) “For unto Me the children of Israel are servants” — servants to Me but not servants of servants (of human beings), and yet this man went and procured another master for himself — let him be pieced in their presence (i. e. let them be eye-witnesses now when this man voluntarily prolongs his state of slavery)! (Kiddushin 22b.) ועבדו לעלם AND HE SHALL SERVE HIM FOR EVER — This means until the Jubilee. Or, p...

THEN HIS MASTER SHALL BRING HIM UNTO ‘HA’ELOHIM’ — “to the court. The servant must take counsel with those who sold him.” [Thus is the language of Rashi.] And Rabbi Abraham ibn Ezra wrote that the judges are called elohim because they uphold the laws of G-d on earth. In my opinion Scripture uses these expressions: Then his master shall bring him unto ‘ha’elohim;’ the cause of both parties shall come before ‘ha’elohim,’ in order to indicate that G-d will be with the judges in giving their judgment. It is He Who declares who is just, and it is He Who declares who is wicked. It is with reference to this that Scripture says, he whom ‘Elokim’ (G-d) shall condemn. And so did Moses say, for the judgment is G-d’s; so also did Jehoshaphat say, for ye judge not for man, but for the Eternal, and He is with you in giving judgment. Similarly Scripture says, G-d standeth in the congregation of G-d; in the midst of ‘elohim’ (the judges) He judgeth, that is to say, in the midst of a congregation of judges He judges, for it is G-d Who is the Judge. And so also it says, Then both men, between whom the controversy is, shall stand before the Eternal. And this is the purport of the verse, For I will not justify the wicked, according to the correct interpretation. In Eileh Shemoth Rabbah I have seen it said: “But when the judge sits and renders judgment in truth, the Holy One, blessed be He, leaves, as it were, the supreme heavens and causes His Presence to dwell next to him, for it is said, When the Eternal raised them up judges, then the Eternal was with the judge. AND HE SHALL SERVE HIM ‘L’OLAM’ (FOREVER). Our Rabbis interpreted this to mean until the jubilee year. And Rabbi Abraham ibn Ezra wrote that “the meaning of olam in the Sacred Language is ‘time.’ It hath been already, ‘l’olamim’ which were before us means ‘the times’ [or ‘the ages’] which were before us. And there he may abide ‘ad olam’ [cannot mean ‘forever,’ for Samuel did not stay all his life in Shiloh; it must therefore mean ‘until a certain time,’ i.e., until he comes of age]. This is why the Rabbis have said, and he shall serve him l’olam means up to the time of the jubilee year, for of all appointed seasons in Israel the jubilee year is the most remote, and the going out to freedom is as if the world was made anew for him. The sense of the verse is then, that he should return to his status in his first time, when he was free.” The student learned [in the mystic lore of the Cabala] will understand that l’olam is to be taken in its usual sense [i.e., forever], for he who works until the jubilee year has worked all the days of old. In the words of the Mechilta: “Rabbi says: Come and see that olam cannot mean more than fifty years, for it is said and he shall serve him ‘l’olam,’ which means until the jubilee year.” Now Rabbi Abraham ibn Ezra forgot that which he wrote with understanding in another place.

"And he shall bring him" — The word אֱלֹהִים here means those who administer judgment in the land, and it was customary for them to sit at the gate of the city that has doors and a bolt — hence the meaning of "to the door or to the doorpost": he performs this act before those seated at the city gate. — "And he shall serve him forever" — We know that the word לְעוֹלָם in Hebrew means a period of time, as in "it has already existed in ages past" (כְּבָר הָיָה לְעֹלָמִים, Eccles. 1:10), meaning former times; and "he shall abide there until a time" (עַד עוֹלָם, I Sam. 1:22), meaning until he is grown. So too "he shall serve him forever" — until the time of the jubilee, for there is no appointed time in Israel's calendar longer than it, and the liberation it brings is as though a new era dawns. Or the meaning may be that he returns to his former state and becomes free.

אל הדלת או אל המזוזה, “against the door or doorpost of the courthouse; we find an example of this in Deuteronomy 17,5: והוצאת את האיש ההוא אל שעריך, “you are to take out that man to your gates, (court);” This procedure is designed to give publicity to the irrational behaviour of this Jewish “slave;” let all the people passing the courthouse know who it is that has preferred life as a slave with a gentile slave to life as a free Israelite. He will have no chance to escape this status before the next Jubilee year. או אל המזוזה, “or against the doorpost;” Rashi comments on this that the Torah draws a parallel between “door” and “doorpost;” both are upright. What Rashi means is that the doorpost is compared to the door only in respect of their both being upright. The definitive aspect of this procedure is found in Deuteronomy 15,17, where the Torah stipulates that the ear of the person who is going to have it pierced is to be adjacent to the door at that time. This is proved by the Jerusalem Targum which translates the word או in our verse as meaning אשר, “which is;” there are similar constructions to this, as in 21,36 או נודע כי שור נגח הוא, where the word או also means אשר, i.e. “an ox which is known to be aggressive.” The author quotes more examples. In our verse here, Rashi prefers an allegorical explanation based on the Mechilta, i.e. the ear which had heard G-d say at Mount Sinai: ”do not steal,” and which had heard G-d say: “the Children of Israel are My slaves,” needs to be reminded of this by being pierced after having opted to ignore both of these statements by G-d. Our author corrects the reference to “do not steal” from the Ten Commandments, as that commandment speaks of stealing persons, i.e. kidnapping. Therefore the version found in Leviticus 19,11 is preferred as there the Torah speaks of the theft of objects. Also, the prohibition in the Ten Commandments carries a death penalty as opposed to the version of theft discussed in Leviticus. In that version the ordinary penalty is to make restitution of twice the value of the stolen objects; if the thief is unable to come up with the money, then he [his labour, Ed.] is sold by the court to someone willing to buy him and to abide by the Torah’s rules concerning how to treat him. The reason why Rashi chose the prohibition of stealing when he had so many others to choose from, is because the thief displayed greater fear of the Lord than many other kinds of sinners, as he committed his sin in secret when insulting G-d by being more afraid of the police seeing him than of G-d seeing what he did. Moreover, the Jewish servant choosing to continue serving his master in spite of living with a non Jewish mate and raising non Jewish children, has demonstrated that he does not care what G-d had said nor what G-d’s servant, his master, has said. Hence his deliberately “faulty” hearing is being punished. ורצע אדוניו, “and his master will proceed to pierce his ear;” the practical use of this procedure is that if he were to escape from his master during the years to come, the mark left on his ear will serve as evidence that he is an escaped slave. He will also not be confused with a Canaanite, as Jewish law forbids mutilating any part of a gentile’s body. Besides, when it comes to proving this when the escaped slave is positioned against the door where his ear had been pierced, the height of the hole in the door will match the hole in the slave’s ear when he is positioned there. את אזנו, “his ear;” the reason why this part of the body has been chosen by the Torah for this procedure is that if the slave were to protest that he had inflicted this hole upon himself, he would not be believed, as it is impossible for him to have done so. את אזנו, it was customary to mark someone who had not conducted himself as he should, by piercing his ear. From this custom evolved the practice to do this to thieves. במרצע, “with an awl;” I have heard the following allegorical explanation of why this tool was chosen by the Torah for this procedure; (Compare Torah shleymah by Rabbi Menachem Kasher on the source item # 137) The cost of an awl used to be 400 coins of a certain denomination. G-d had decreed 400 years for Abraham’s descendants to be strangers and slaves, but He had subsequently decreased the length of their serfdom. This slave who could have gotten his freedom, instead volunteered to lengthen his period of serfdom. ועבדו, ”and he is to serve him (his master)” only for his original master, not his son or daughter, if he dies prematurely. This verse is the source of the statement in the Mechilta :“A Jewish “slave” serves his master (during the first six years) or his master’s son, but not his master’s daughter. If he had his ear pierced, or if it was a female Jewish “slave,” neither will serve after the master has died. לעולם, according to Rashi, this word does not mean: “forever, i.e. the rest of his life,” but until the onset of the next Jubilee year. To the question that possibly the Torah did indeed mean that the “slave” in question would now have to remain a “slave” for the remainder of his life, the question is that in that event what was the point of the Torah having to write in Leviticus 25,46: והתנחלתם אותם, “you may leave them as an inheritance to your children,” (Canaanite slaves)? If even a Jewish “slave” could be inherited by your children, surely the Torah did not have to tell us that the same was true for bodily owned Canaanite slaves? Clearly therefore the Torah meant that such a Jewish slave would continue to the end of his natural life, usually no longer than seventy years in the status he had acquired as a result of having had his ear pierced. The Torah’s example here assumes that the thief had been about 20 years of age at the time he committed his crime, so that he had a life expectancy of another 50 years. It follows that the term לעולם, is another way of saying “for up to 50 years.” If the Torah had written: לעולם ועד, it would have meant: “until he dies.” This could have been supported by Samuel I 1,22, where the mother of Samuel tells her husband that she will hand over her son to the High Priest Eli, and she clearly meant by that “for the rest of his life.” In the event, Samuel died at 52 years of age, 50 years after having been handed over to Eli. Rashi, on that verse, explains that she prophesied that Samuel would die at that age, without having been aware that her words had been a prophecy. He adds that 50 years are considered a euphemism for “a lifetime.”Furthermore, as stated previously, Leviticus 25,10 in which a slave is included in the possessions that must be restored to their original status, the Jubilee year, the fiftieth in a cycle, is described as such a radical turning point in his life.

והגישו אל הדלת, “and he shall bring him to the door.” Had the Torah not added the words או אל המזוזה, “or to the doorpost,” I would have concluded that it did not matter whether the door be in an upright position at the time the awl was applied or not. The words או אל המזוזה provide conceptual linkage between door and doorpost. Just as the doorpost is upright, so the door must be in an upright position at the time of the piercing of the servant’s ear (Pessikta Zutrata). ורצע אדוניו, “and his master will perform the piercing.” only the master himself, not his son or his agent or even an agent of the court (Mechilta). את אזנו, “his ear;” not her ear; this excludes piercing the ear of a female (Kidushin 15). במרצע, “with the awl.” the Torah does not say be-martzea, with any awl, but the vowel patach under the letter ב means that there is a special awl for this procedure (kept by the court?). ועבדו, “and he will (continue) to serve him.” “Him” and not “his son.” This word proves that the servant acquires his freedom automatically when his master dies. לעולם, “forever.” According to Kidushin 21 the word means “for the duration of that Yovel cycle.” It is a fact confirmed by psychologists that a servant who keeps serving the same master is liable to get fed up with his life wishing to become free. The fact that the Torah discusses the phenomenon of a Jewish man who prefers to remain in the permanent service of a human master instead of relying only on G’d as his master is an entirely unusual phenomenon. This is why the Torah legislated that in this instance the employer (master) in whose service this servant has chosen to remain must himself be the one who pierces the organ of a man who had heard at Mount Sinai that “the Children of Israel are My servants,” and who has yet preferred to serve a master of flesh and blood. ... I believe that this consideration explains why the paragraph did not commence with the words כי תקנה עבד ישראל, “when you purchase an Israelite as a servant,” but refers to such a person only as עבד עברי. The word ישראל is a compliment for a Jew. The servant in question did not deserve this compliment when he was sold for stealing, nor does he deserve this compliment if he prefers to serve a master of flesh and blood to serving exclusively the Almighty. The Jews in Egypt, the enslaved Jews, were always known as עברים instead of as ישראלים. Even Moses had referred to אלו-הי העברים when introducing himself to Pharaoh (Exodus 5,3) as the Israelites had not yet qualified for the title “Israelites.” All this explains why the Torah chose the ear of the servant which had heard G’d proclaim the commandment to be servants of G’d exclusively and had yet chosen to ignore it, to be pierced by his master whom he had chosen in order for both servant and master to realise that they had been remiss in maintaining a servant-master relationship between them. The Torah insists that this contract between the servant and the master be concluded in front of court, i.e. “his master shall bring him אל האלו-הים, “to a judge,” i.e. a court, the representative of G’d on earth. The word האלו-הים represents the attribute of Justice. This same attribute of Justice had waived its right as Master to kill the Jewish firstborn in Egypt in order to save the Israelites from bondage and from slavery, and here comes an Israelite and he volunteers to be a slave! The Torah repeats once more: “and he shall bring him to the door or to the doorpost,” the doorpost being reminiscent of the one which, when it was smeared with the blood of the Passover lamb, signified service of the inhabitant of that house to G’d rather than enslavement to man (Exodus 12,22). This is why by piercing the ear of the servant in question the master extracts some blood from it. This blood signifies the reverse of what the blood on the doorposts and lintel of the Jews in Egypt on that fateful night had signified, Then it had expressed the desire to be free, this time it expresses the desire of the owner of that ear to remain unfree. The entire procedure legislated here by the Torah is once again a demonstration of how G’d employs the principle of מדה כנגד מדה, “measure for measure.” Even though the extraction of blood from the ear lobe of the servant is not an essential part of the procedure, as piercing the ear with a chemical would also have achieved the same halachic result, the fact is that most piercing of ears is done by means of an awl and not by means of some chemical agent. The letters in the Hebrew name for the tool employed, i.e. מרצע have a numerical value of 400, as if to symbolise that the servant to whom it was applied wanted to add to the 400 years of bondage of the Jewish people in Egypt. A Midrashic approach to the words והגישו אל הדלת: G’d had said: “I opened the door of the house for him to enable him to walk into freedom and he slammed the door upon himself in order to remain a slave! As a penalty he will be hit by the door. You must also understand that there is a mystical dimension to the word דלת. This is the reason that the word has been used here with the letter ה and the vowel patach under it to signify that the Torah speaks of something known, not just of any door. We also find the word ובדלת in Deut. 15,17 ונתתה באזנו ובדלת, “and put it through his ear and the door,” with the vowel patach under the letter ב as if the door were one that we are familiar with. The door is a means of gaining entry into a house. A house without a door cannot be accessed. The very word דלת represents the letter ד in the first line of the קריאת שמע declaration שמע ישראל ה’ אלו-הינו ה' אחד, “Hear O Israel the Lord our G’d the Lord is One.” The word שמע is addressed to כנסת ישראל, the spiritual concept of the people of Israel. כנסת ישראל symbolizes our entrance gate to the celestial regions, the “door” or דלת leading to Heaven, the gateway by which the righteous enter that domain (Psalms 118,20). When the Torah continues saying או אל המזוזה, the word מזוזה is a “number” representing a substitute for the same concept; it has a numerical value of 65, the same as the attribute of G’d as “Master” i.e. א-ד-נ-י. The Hebrew servant discussed in our portion was unaware of these deeper mystical connections between one kind of master and another; this is why he foolishly traded the Master whom he could not see with his senses for one whom he could see, hear, feel, etc. In order to eventually teach him to recognize the mistake he made he has to serve his master לעולם, until the conclusion of “this world,” i.e. until such time as לה' הארץ ומלואו, all of mankind will recognize that the whole earth belongs to the Lord. ועבדו לעולם, “and he will serve him forever.” Mechilta Nezikin section 2 accepted that the meaning of the word “forever” in this context is “until the advent of the next Jubilee year.” This would be the fiftieth year of the cycle during which the servant had his ear pierced. A period of fifty years has been called עולם already in ancient times and we find a reference to it as having this meaning in Samuel I 1,11 where Samuel’s mother Chanah vows that after she had weaned her young son she would bring him to the Temple to reside there עד עולם, “forever.” Clearly, seeing no one lives forever, she did not mean that the word לעולם is to be understood as literally “forever.” She referred to the active life span of a Levite who is forced to retire at the age of 50 as we know from Numbers 8,24. Samuel was a Levite, of course. Samuel only lived for a total of 52 years, the last 50 of them after his mother had dedicated him to be a servant of G’d as she had vowed before becoming pregnant with him (Jerusalem Talmud Berachot 4,1). The Torah’s direction that the Hebrew servant be freed at the advent of the Jubilee year is effective regardless of how many or how few years before that year the servant in question was acquired. Another way of interpreting the word לעולם is: “as long as the world exists.” In that event the connection with the שנת היובל would be the יובל הגדול, a concept mentioned in Psalms 105,8 דבר צוה לאלף דור, “He gave a command which is in effect for 1000 generations.” A “generation” in that case would be considered a period of 50 years. When Solomon (Kohelet 1,4) spoke of והארץ לעולם עומדת, that “the earth will endure for a period called עולם,” he referred to these 1000 generations mentioned in Psalms. The word עולם in our verse then would refer to the “world of the great Jubilee.” I shall discuss this in greater detail in my commentary on Leviticus 25,8.

והגישו אדוניו אל האלו-הים, “his master is to bring him to the Court.” The word אלו-הים here refers to a Court. Ibn Ezra writes that the reason why the judges in the Torah are often referred to not as שופטים but as “elohim” is because they are G’d’s agents on earth, carrying out His will. Nachmanides understands our verse to mean that the master is to bring the servant in question before a judge, a legally constituted tribunal, a site which enjoys the presence of the Shechinah and which inspires the judges to ensure that their verdict will be in line with G’d’s wishes. These judges are authorized by G’d to either exonerate or to condemn as evil, as guilty. (compare 22,8) Moses also stated: כי המשפט לאלו-הים הוא, “Justice belongs to G’d,” when he referred to the function of tribunals on terrestrial earth. (Deut.1.17) We also have an explicit verse illustrating this concept in Psalms 82,1, i.e. אלו-הים נצב בעדת א-ל, “G’d stands in the divine assembly.” והגישו אל הדלת, “he shall bring him to the door.” According to the plain meaning, seeing that the court holds its session publicly as we know from Ruth 4,1 where the judges sat near the city’s gate, the servant’s ear would be pierced on the door of the city’s gate. This would ensure maximum publicity of the person’s new status. Some commentators say that the point of the procedure is to indicate by the hole in the servant’s ear that this individual is charged with guarding the “door, entrance” to the home of his master Other commentators claim that the procedure itself as well as where it took place, will ensure that this servant could never claim that the hole in his ear was self-inflicted, as his master by bringing him to the door where the procedure had been performed can demonstrate that the height of the mark left on the door by the chisel that pierced his ear matches exactly the height from the floor to the servant’s ear. ועבדו לעולם, “he will continue in service to his master until the Jubilee year.” Seeing that the word לעולם in our verse cannot possibly mean: “forever,” the alternate meaning of this word in Scripture is: “until the Jubilee year,” and is applied here. Ibn Ezra explains that the word לעולם in the Holy Tongue describes a certain period of time as we know from Kohelet 1,10 כבר היה לעולמים, “it has already existed in antiquity.” In this verse it refers to a well-known point in time, one that recurs every 49 years. In terms of time cycles in the Jewish calendar, or history, it is the longest such cycle, and therefore the word לעולם, commonly translated as “forever, without end,” is most appropriate. At the end of this cycle a new עולם, “world,” opens up before this servant.

אל האלוהים, before a judge or judges אל הדלת או אל המזוזה, in public view, as a sign of servitude. The door and doorpost described are made of wood even if the house in question is of stone so that the procedure of piercing the ear against such a background poses no problem. לעולם. According to the plain meaning of the text, “for the rest of his life.” This is also the meaning of the word לעולם in Samuel I 1,22 when Chanah announced her intention of handing over her son Samuel to the High Priest Eli.

ורצע אדוניו את אזנו במרצע, “his master must pierce his ear with an awl;” why did the Torah choose the awl as the tool with which to pierce this servant’s ear? The numerical value of the letters in the word מרצע equals 400. It is to remind that servant that seeing that G–d had redeemed the Jewish people from 400 years of slavery, it is unbelievable that he should choose being enslaved to a human master voluntarily. G–d had stated categorically in Leviticus 25,55 כי לי בני ישראל עבדים, “for the Children of Israel are meant to be bound by a master- servant relationship only with their G–d,” not with any human being. If this man chooses to become indentured to a human master he deserves to be punished physically. (Talmud, tractate Kiddushin, folio 22, and Tossaphot on that folio. ועבדו לעולם, “and he shall serve him “forever.” The word עולם here means: for the same length of time as the Levites perform their duties in the Temple. The word is used in this connection for the prophet Samuel whose mother had “given him” to G–d, i.e. to the Temple and the High Priest when he was 2 years old. Samuel died at the age of 52. (Samuel I 1,22) It follows that the length of time someone must serve a master when the Torah calls it לעולם, is no longer than 50 years.

And when a man sells his daughter as a maidservant, she shall not go free as male slaves go free.

וכי ימכר איש את בתו לאמה AND IF A MAN SELL HIS DAUGHTER TO BE A MAIDSERVANT — The text speaks of a minor daughter (under 12 years of age). You might think that he may sell her also although she may have shown signs of incipient puberty and is no longer a minor! You must admit, however, that the à fortiori argument applies: How is it in the case of a woman who was sold at an earlier age (as a minor)? She goes free on showing signs of incipient puberty, as it is said, (v. 11) “then shall she go out free without money”, which law we explain to refer to a woman who has showed such signs during the period of slavery! Is it not the conclusion that she who is of such an age and has not yet been sold shall not be sold at all?! (Arakhin 29b, cf. Mekhilta). לא תצא כצאת העבדים SHE SHALL NOT GO OUT AS THE MENSERVANTS DO — i. e. not under the circumstances that the Canaanitish menservants’ departure takes place, for these go free in consequence of the loss of their tooth or eye inflicted by their master; this woman, however, shall not go free because of such loss of her tooth or eye, but shall serve either six years or until the Jubilee, or until she shows signs of incipient puberty. Whichsoever of these periods comes first brings her freedom first. — He (the master), however, has to pay her the value of her eye or the value of her tooth. — Or perhaps this is not so, but, “she shall not go out as the men-servants do,” means she shall not go free as the Hebrew menservants do, viz., at the end of six years or at the Jubilee? Scripture, however, states, (Deuteronomy 15:12) And if thy brother, an Hebrew man or an Hebrew woman be sold unto thee”, comparing the Hebrew woman with the Hebrew man in regard to all reasons for departure (i. e. also with regard to her going free in the Jubilee, for that she goes free in the seventh year is stated in the text just quoted). How is it in the case of a Hebrew man? He goes free at the end of six years and at the Jubilee! So, too, does the Hebrew woman go free at the end of six years and at the Jubilee. What then do these words mean: “she shall not go out as the menservants do”? They mean: she shall not go free in consequence of the loss of one of “the tips of her limbs” (i. e. the ends of limbs that project from the body) (cf. Mishnah Negaim 6:7) inflicted by the master, as the Canaanitish servants do when they that lose “the tips of their limbs” (Mekhilta; Kiddushin 20a). Incidentally I may add that you might think that the Hebrew manservant shall go free in consequence of loss of one of the tips of his limbs and that only the Hebrew maidservant differs in this respect from the Canaanitish servant, since Scripture expressly specified her in the words: she shall not go out free etc. Scripture, however, states “an Hebrew man or an Hebrew woman” thereby comparing the Hebrew man with the Hebrew woman. What is the case with the Hebrew woman? She does not go free in consequence of loss of one of “the tips of her limbs”! So, too...

SHE SHALL NOT GO OUT AS THE MENSERVANTS DO. This means that the Hebrew maidservant does not go out free “in consequence of the loss of a tooth or an eye, as Canaanite slaves do.” Thus is Rashi’s language, and our Rabbis interpreted it likewise. Indeed it is so, for a Hebrew servant is not called eved without any further qualification. But I wonder: why does Scripture find it necessary altogether to tell us this [that a Hebrew maidservant does not go out free because of the loss of a tooth or eye, as Canaanite bondmen do]? Perhaps it is to tell us that we should not argue by applying the method of kal vachomer from a Canaanite women, that a Hebrew maidservant goes out free because of the loss of a tooth or eye. This law is stated expressly in the case of a Hebrew woman, but such is also the law for a Hebrew man, who has been compared to her [thus he too does not go out free because of the loss of any of the chief external organs]. The author of the ‘Hilchoth Gedoloth,’ wrote, however, that [the verse is not needed to exclude this kal vachomer, for even if Scripture had not excluded it, we could not have argued that a Hebrew woman should go out free in consequence of the loss of a tooth or eye], because the going forth to freedom by slaves on account of the loss of a tooth or eye is a penalty [to the master], and you cannot derive a law by logical argument from penalties. The author of the ‘Hilchoth Gedoloth’ thus considered this verse a negative commandment wherein G-d warns the master that if he wants to send her out free because of the loss of a tooth or eye, that he transgresses a prohibition; but instead he is to pay her monetary compensation for the tooth or eye, and she shall stay with him up to the time [of six years, or before if she produces signs of puberty], to be designated as the master’s wife [or his son’s]. For it would be a great injustice if, after causing her the loss of a tooth in his anger and blemishing her thereby, he would then send her out of his house, when she had hoped to become his wife. Moreover, many times the monetary compensation for the damage done to the chief external organs, is more than the earnings for her labor if her days as a handmaid have nearly terminated. Therefore Scripture was strict upon the master and made a clear prohibition, so that he should not rob her of the monetary compensation due to her for the loss of any of her chief organs, even if he should want to let her go free on account of them. It may be that sending her to freedom is itself forbidden before the fixed time, for Scripture has obliged the master to support her and that she stay with him, in case she finds favor in his eyes and becomes his wife; just as He warned him with a prohibition that [after he marries her and takes another wife] her food, her raiment, and her conjugal rights shall he not diminish. In accordance with this opinion [the author of the ‘Hilchoth Gedoloth’] counted the verse, She shall not go out as the menservant...

"His daughter as a maidservant" — She is a minor, who is under her father's authority — as with a daughter whose vows he may annul. The phrase "to a foreign people" belongs with this verse, for it speaks of the father: "to a foreign people."

לא תצא כצאת העבדים. It is not appropriate for an upstanding member of society to buy a Jewish girl as a servant against her will. Such a “sale” is acceptable only if the girl in question will become the wife of the buyer or his son when reaching puberty. The purchase price will be given to her father as our sages have stipulated in Ketuvot 46.

וכי ימכר איש את בתה, When a man sells his daughter, etc. In this instance as opposed to verse 2, the Torah emphasises the seller instead of the buyer. The reason is that one does not purchase a Jewish maidservant from anyone other than her father. The girl does not sell herself, as does an impoverished male. The law of selling a thief in payment of what he has stolen from his victim also does not apply to female thieves (compare Mechilta). The additional letter ו in the word וכי, means that the father of the girl does not only have the right to marry her off, but also to sell her as a maidservant. איש את בתו, a man his daughter, etc. We learned in Sotah 23 that the word איש, is used to exclude the right of a woman to sell her daughter. The word את is to tell us that whereas a man may sell himself, a woman may not (Mechilta). You have to read the verse thusly: "And a man may sell his daughter." If the Torah had not commenced the verse with the conjunctive letter ו, but had merely written: "A man may sell his daughter," I would have known only that he may sell his daughter but not that she could not sell herself. לאמה, as a maidservant, etc. We have to interpret this expression by following the Talmud in Kidushin 4 that even if the daughter has displayed the marks of barrenness the father may still sell her. The emphasis of the Torah on לאמה, [something that is self-evident, for as what else would the father sell her? Ed.] teaches that although this girl is not marriage-material this does not diminish the father's right to sell her into service. We could also approach this expression from the point of view expressed in the Tossephta Bikkurim chapter 4, according to which the word is needed to exclude the father's right to sell her if there are doubts about her sex. If there are indications that she is a hermaphrodite or a Tumtum (having hidden genitals preventing determination of what sex she is), the father or the court could not exercise the right to sell her/him into service. The word לאמה is not superfluous then. לא תצא כצאת העבדים, she will not leave the service according to the conditions applying to male slaves. Our sages in Kidushin 16 understand this as a comparison with a Gentile slave who obtains his freedom if the master (or his agent) caused any of 24 specified injuries. The justification for this interpretation is the Torah's use of the word עבדים without specifying the addition עבריים, "Jewish ones." When the Torah applies the term עבד to a Jew it is always accompanied by the adjective עברי. A Jew is not just a "slave." I believe that the plain meaning of the verse is that whereas male Jewish slaves do not leave the employ of the master before their six years of service have expired, even if the master to whom they have been sold has died before the completion of the six years, this rule does not apply to a female Jewish maidservant. As soon as her master dies she is free to leave. The words: "she does not leave like the male slav...

וכי ימכור איש את בתו, “in the event that a father ‘sells’ his daughter, etc.;” the reason why the father here has been described as איש, “a man,” is to make clear that a mother is not allowed to “sell” her daughter. את בתו, “his daughter,” but not his son. לא תצא כצאת בעבדים, “she will not leave her “master’s” employ according to the same rules as does a male “slave.” Rashi explains the word עבדים in this verse as referring to Canaanite slaves. If someone had thought that it referred to Jewish slaves, consider the fact that the Torah had separately legislated what the terms are when Jewish slave leaves his “master” in Deuteronomy 15,12. The conditions for releasing Jewish “slaves” had stipulated there that no difference is made between males and females. If you were to ask why the same rule does not apply regarding releasing a Jewish boy “servant” when he displays signs of puberty, seeing that we have a principle that the exegetical tool known as heckesh, a comparison spelled out in the Torah, must not be applied in an arbitrary manner, the reason is that there cannot be a situation in which such a comparison could be legally valid, as there is no situation when the Torah provides for a male’s puberty resulting in such a change of his status. If he had sold himself as a minor, the sale would not have been recognised as legally valid. We have already learned that his father was also not legally empowered to sell him. Rashi explains further that the comparison that the Torah made between a female Jewish “slave” and a male one, applies to the fact that neither of them obtain their release by having lost one or more of their organs, including even the loss of a tooth. This law applies only to gentile slaves. If you were to argue that we did not need to have this spelled out for us as we could have arrived at this conclusion by using simple logic, i.e. if a female Jewish ”slave,” who is released after displaying signs of puberty, is not released when losing an organ, it is clear that a male Jewish slave who is not released from service when displaying signs of puberty, is most certainly not released either when he loses an organ. We must therefore conclude that this socalled logic is faulty, as an opposite conclusion could be arrived at by using the “same” logic in reverse. What is the disadvantage a female Jewish “slave” labours under? She does not get her release as a result of losing an organ. Seeing that she had not been sold as a result of having committed theft, her male counterpart would certainly not be released under similar circumstances as he had been sold as a penalty for having committed theft. In order not to arrive at the wrong conclusion by using “our” logic, the Torah therefore wrote: “the male Jew or the female Jew” in Deuteronomy 15,12. לא תצא כצאת העבדים, “the rules for her release are not the same as that for her male counterparts.” According to the plain meaning of this verse the Torah here is inserting a rule of civilised behaviour, derech eretz. Men are sent on errands all over the earth, by day and night, and encounter all kinds of temptation while doing so. If women had to doo this, this would be considered a great disgrace for them. The Torah therefore states that female Jewish servants are to be used by their masters only for tasks that do not require tem to leave their immediate environment, the master’s home. In Psalms 45,14 this is summed up under the heading of: כל כבודה בת מלך פנימה, “the entire glory of the King’s daughter is within her,” (not on public display) Furthermore, the female Jewish “slaves” under discussion here are all minors. An alternate approach: Whereas the male “slaves” leave the master’s employ unaccompanied by children they had sired while in his employ, (as discussed earlier) the female Jewish “slave,” if her master wants to have children by her, must first marry her, in which case she ceases to be a “slave” anyways. If the marriage does not work out, she will be divorced and take her children with her, like any normal woman who is divorced from her husband and gets a financial settlement.

וכי ימכור איש את בתו לאמה, “when a man sells his daughter as a maid-servant, etc.” This verse is the father’s authority to “sell” his daughter for her own benefit as long as she is less than 12 years old (Mechilta Nezikin section 3). לא תצא כצאת העבדים, “the terms of her release will not parallel the conditions of freedom for her male counterpart.” She will not leave the service of her master like a Gentile male slave, i.e. through loss of an organ such as an eye, a tooth, etc. (ibid). Whenever the word עבד or אמה is found in the Torah without additional data such as “Jewish” or ”Egyptian,” Canaanite slaves are meant. When the Torah speaks of a Hebrew servant the fact that he is Jewish is spelled out (compare 21,2). The warning in our verse is addressed to the employer of such a Jewish maidservant that if he would release (kick out) his maidservant due to loss of, say an eye, he would be guilty of violating this negative commandment. Instead of releasing her from his service he has to compensate her for the loss including pain, embarrassment, etc., (based on the author of Halachot Gedolot). She continues in her position for the agreed upon period.

She shall not go out as the male slaves go out. Like slaves who go out for a tooth and an eye, rather she works for six years, or until the Jubilee year, or until she brings signs [of puberty]. At first glance, it seems appropriate to give a reason for all these matters of freedom regarding a Hebrew slave, a Hebrew maidservant, or a Canaanite slave, because any Canaanite who has not been illuminated by the light of the Torah has no other purpose except to deal in silver and gold, to amass grain like the sand of the sea, and to acquire wealth. For this reason, he makes himself like a donkey bearing a burden, and he is a slave with a pierced ear to his monetary possessions all his days forever. With that accumulated wealth, he has no other purpose except to feed his teeth and his eyes. His teeth and body, how so? Through his wealth, he obtains all kinds of food that enter through the mouth and grinders [teeth]. As long as his grinding teeth are strong and healthy, he imagines that just as they are strong now, so they will continue to be, grinding all food without ceasing, until they are worn out from eating and the grinders cease because they become few (Ecclesiastes 12:3). But before this happens, he is forever standing under this yoke of slavery. And when he comes into old age and can no longer taste any food with pleasure, then he ceases and becomes a free man, for why should he labor for the wind? As Barzillai the Gileadite said (Second Samuel 19:36): I am now 80 years old. Can I still taste what I eat? His eyes, how so? Sometimes, and more often than not, there is a person who gathers for all the camps more than necessary for his food and other needs, and this is in order to feed his eyes, as it is written (Proverbs 27:20): The eyes of man are never satisfied, and it is written: What advantage has the owner except to look at it with his eyes? (Ecclesiastes 5:10). As long as his eyes are in his head, he will never be satisfied and has no freedom at all. But when he grows old and his eyes dim from seeing, and those that look through the windows grow dark, then he will be satisfied from his soul’s toil, for whom is he laboring if his eyes are dim and the grinders have ceased? And as long as both [eyes and teeth] are at their full strength, he jumps from one food to another and pours from this to that, as explained in our work Ollelot Ephraim in the discourse about Hormiz bar Lilita who would pour from one [vessel] to another. Therefore, the Torah gives freedom to a Canaanite slave when a tooth or eye is knocked out, measure for measure, because this is the freedom that he too would choose from his soul’s toil, for he too only stops chasing after vanity when his tooth and eye cease functioning. However, not like these is the portion of Jacob, for every man from Israel who has God’s Torah within him does not seek imaginary possessions except to the extent necessary to satisfy his household’s hunger, so that his limbs will be strong and healthy to engage in God’s Torah, which was given on the seventh day, the Sabbath, a day free from work. For on that very day he is free from labor in order to engage in the Torah that was given after 50 days at the sounding of the Jubilee. And when he has so much in his possession that he can engage in Torah without distraction, then he is a free man and casts off from his shoulders the burden of imaginary possessions and places upon his neck the yoke of Torah, which is alluded to in the [laws of] six [years] and the Jubilee. And this is what our Sages of blessed memory said (Avot 6:2), There is no free man except one who engages in Torah, etc. For he does not wait for his freedom until his old age, as is the custom of the nations who are released [from servitude] for a tooth or an eye [injury], but even in his youth he is a free man when he has sufficient means to engage in Torah, which was given after six days and in the Jubilee year. Therefore, measure for measure, the Torah granted freedom to a Hebrew slave after six [years] and in the Jubilee. Additionally, a Hebrew maidservant goes free upon showing signs [of puberty], indicating that her main purpose is for the continuation of the species, to bear children. Therefore, as soon as she shows signs and is fit to bear children, her master is obligated to free her in order to marry her to a man, for this is the purpose for which she was created. There is another hint in this entire passage, that the seventh number is distinct from the six in three places: at the beginning of the passage “and in the seventh he shall go free”; at the end of all the laws between man and his fellow it is written but the seventh year you shall let it rest and lie fallow, that the poor of your people may eat; and in the middle of the entire passage, as concluded in the Yalkut on this passage, that there are 60 commandments in the entire passage until the section on the sabbatical year, and in the section on the sabbatical year there are 10 commandments, totaling 70, and certainly this number is not meaningless. What seems likely to me to say about this is that anyone who commits injustice and violence regarding money blinds his eyes from seeing that he will not take everything when he dies, and he will only be able to use all that he has for 70 years, the appointed time for all living, and as the seventh year approaches he will go free, as it is said free among the dead (Psalms 88:6), and the seventh year you shall let it rest and lie fallow, that the poor of your people may eat, for most of his use of them is when he goes to the grave in full age, corresponding to the numerical value of “in full age” (bekhalach, which is 70). But the last 10 years he should use for his eternal home, and remember that when he dies everything becomes ownerless, and he has no advantage in his labor. And if this matter were to be a reminder before his eyes, he would not commit injustice to pervert a person in his dispute, because what he has is not his — why does he need a possession that is not his [from a liturgical poem for the second day of Shavuot]? Therefore, the Torah hints at freedom in the seventh year in these three places in this passage, which is entirely built on the foundation of the laws between man and his fellow, and this is the secret of the number of 60 commandments, and the seventh passage, namely the sabbatical year, has 10 commandments, and the wise will understand.

לא תצא כצאת העבדים, “she will not be free in the manner male servants are freed.” Loss by the servant of an eye or a tooth, through violent action by the master, leads to the servant’s immediate freedom. The same rule applies to the male Jewish servant. We need a special verse for this lack of symmetry governing treatment of gentile slaves when abused, and that of Jewish servants similarly abused, as without it we would have deduced from an a fortiori, that if a gentile slave is freed immediately due to his master having rendered a tooth or an eye useless, a Jewish servant would be entitled to at least the same privilege. If this logic were to be applied, the Jewish servant would forfeit his entitlement to compensatory damages, something he does not in fact forfeit. The basic difference in the legislation is that in the case of the gentile slave the freeing of the slave (whose body was owned by his master) is in the nature of a penalty to his master for having abused him. Whenever the Torah legislates a penal measure it cannot serve as a model for other situations. Our verse must be understood as a negative commandment not to release a female or male Jewish servant for loss of eye or tooth, and that doing so, far from being a charitable act, is in fact the violation of a negative commandment. The Torah is stringent with the master, closing a loophole that would have enabled him to escape his financial obligations to the victim of his cruelty or carelessness. The Hebrew servant or female servant is compensated according to the rules prevailing for any other Jewish male or female, and in the event that the compensation exceeds the value of the servant’s labour still to be rendered under his contract, the master (employer) does not have the option of freeing such a servant forthwith. Such a temptation for the master is especially likely when the incident occurred near the end of the forced employment term of said servant. Alternatively, the plain meaning of the phrase is that maidservants, unlike men servants, are not supposed to be sent outside, into the fields, for instance, to perform their labours, but are to do this in the house of the master or in his yard.

לא תצא כצאת העבדים, after the expiry of six years. Her employer is supposed to marry her, as will be explained later.

וכי ימכור איש, “If someone “sells” his daughter, etc.;” according to Rashi, he can only do so while she is less than 12 years of age. If someone were to claim that the father can still do so when that daughter has demonstrated signs of puberty, and that person would argue that the work performed by a daughter belongs to her father even while she is between 12 years and 12 and a half years old, the Torah has added the word לאמה, “to become a maid-servant.” She cannot be “sold” as such when older than 12 years and a day. Some scholars are of the opinion that when a minor male had been “sold” by his father, that minor would be free to leave the employment of his masters when he displayed signs of puberty. This is totally erroneous, as nowhere did we read that a father may “sell” a son, and to draw a comparison from the text in Deuteronomy 15,12, where a male Israelite is described as “selling” himself is quite absurd. If that verse would speak about a minor boy, say an orphan, selling himself. This would be legally completely invalid as minors cannot do such a thing in Jewish law. The reason is that a Jewish court has no authority to penalise a minor. (Compare the addition to Rashi’s commentary on that verse) לא תצא כצאת העבדים, the terms under which she leaves the employ of her “master” are not the same as apply to male “servants.” Ibn Ezra explains specifically that his master cannot force such a servant to perform labour outside the master’s home. [not found in the Ibn Ezra editions of Mossad harav Kook. Ed.]

If she is displeasing in the eyes of her master, who had designated her for himself, he shall allow her to be redeemed to another man; he has no authority to sell her, since he had exercised dominion over her.

אם רעה בעיני אדניה IF SHE BE EVIL IN THE EYES OF HER LORD — i. e. that she did not find favour in his eyes so that he might be induced to marry her (cf. Mekhilta). אשר לו יעדה means: [IF SHE BE EVIL IN THE EYES OF HER LORD] WHO OUGHT TO HAVE DESIGNATED HER to be his wife and ought to have married her, her purchase-money serving as the money necessary to contract a marriage (כסף קידושין). Scripture hereby implicitly tells you that it is his duty to designate her for himself, and since it makes no mention of the manner in which the marriage is to be contracted it implicitly tells you at the same time that she requires no other rite of marriage than the passing of the purchase-money from the master to her father (cf. Kiddushin 19a, Bekhorot 13a). והפדה means he shall afford her the opportunity to obtain her release from service — that he himself must cooperate in respect to the amount of her ransom. And what is this opportunity he has to give her? That he allows her a deduction from her ransom corresponding to the number of years she has served in his house, as though she were only hired by him. How can this be done? Supposing he had bought her for a maneh (one hundred shekels) and she had served him two years. We say to him: “You knew that she was to go free at the end of six years; it follows then that you bought the labour of each year for one sixth of a maneh. Now she has served you two years, that is the equivalent of one-third of the maneh: accept therefore two-thirds of a maneh as a ransom and let her go free out of your house (Kiddushin 14b). לעם נכרי לא ימשל למכרה means that neither the master nor the father has a right to sell her to another Jewish man (Kiddushin 18a), בבגדו בה SEEING THAT HE HATH DEALT DECEITFULLY WITH HER — If “he” means the master then these words signify: if he intends to deal faithlessly with her, i. e. if he does not intend to fulfil the commandment of “Jiud” (of designating her to himself). So also the father — he has no right to sell her to another man since he has dealt faithlessly with her as a father having sold her to this man (Mekhilta; Kiddushin 18b).

L’AM NOCHRI’ HE SHALL HAVE NO POWER TO SELL HER. “Neither her master nor her father has the right to sell her to another [Hebrew man]. Seeing he hath dealt deceitfully with her — if he [i.e. the master] intends to act deceitfully towards her and not to fulfill the commandment of designating her as his wife [or his son’s]. So also did her father act deceitfully towards her, by selling her to this master.” Thus far Rashi’s language. And if so, l’am nochri would be like l’ish nochri (to a strange man), but we find in all Scripture no parallel to such a usage [that am (people) should be understood in the sense of “man”]. Perhaps the letter lamed in the word l’am draws along with it a similar letter in the next word, thus making it: ‘l’am l’nochri’ he shall have no power to sell her, and the explanation thereof would be similar to the verse, Thou gavest him to be food ‘l’am l’tziyim’ (to the folk inhabiting the wilderness) where the second word l’tziyim explains: who is the folk? — the men who inhabit the wilderness; so here too He says, he shall have no power to sell her ‘l’am’, and He explains: who is l’am? — l’nochri, that is to say, to any stranger from the whole people [i.e., to another Israelite]. The term nochri here will then be similar in usage to the expressions: and thy labors in the house of a ‘nochri’ (stranger), which means in the house of another man; even from the ‘nochriyah’ (the strange woman) that maketh smooth her words, meaning the woman who is not his wife. All this I have written in order to uphold the words of the Sages who say that a man is not permitted to sell his daughter twice into the status of a handmaid, thus holding to the explanation: since he has once dealt deceitfully with her [by selling her to such a status of a handmaid], he has no more the right to sell her. But I have seen in the Mechilta: “‘L’am nochri’ he shall have no power to sell her, — this is a warning to the court that he [i.e., the father] should not sell her to an alien [i.e., a non-Israelite].” It would thus appear from their language that this verse is not meant as an admonition against the father reselling her to this Israelite master or to another one, but is a prohibition against her being sold altogether [even the first time] to a non-Israelite, so that a man may not sell his minor daughter to an idolator as a handmaid. [It was necessary for this to be stated] because in the case of a Hebrew servant He said, and he sell himself unto the stranger who is a settler with thee, or to the offshoot of a stranger’s family, therefore it had to say that this should not be done to a woman. The reason for it is obvious. This surely is the plain meaning of Scripture, that after the father — the vendor — redeemed her from her first master, he cannot sell her to an idolator, and the same law applies to the original sale. Scripture, however, [had to state this prohibition in the case of a re-sale], because sometimes a man may very much want to redeem his dau...

"He shall not have the right to sell her, in his dealing treacherously with her" (בְּבִגְדוֹ בָהּ) — like: "why do we deal treacherously (נִבְגּוֹד) each man against his brother?" (Mal. 2:10). And it is true and right that the master has no right to sell her to any man of Israel — this we know from tradition. This is set down here as a reminder and a support (אַסְמַכְתָּא). Do not be troubled by the distance of "to a foreign people" from this verse, for there is a similar case with "he shall surely pay" (שַׁלֵּם יְשַׁלֵּם, below 22:2), as I will explain. — The Gaon said that "to a foreign people" means "to a foreign man," just as: "will you also slay a nation (גּוֹי), even a righteous one?" (Gen. 20:4). But this is not correct — for one cannot use the word in that sense in any language in the form of a collective noun, since it is proper to say "Israel said" because Israel is a species-name, a collective — as it is proper to say "and Egypt (מִצְרַיִם) said" (above, 14:25); only a noun whose sense is collective, like עַם (people), גּוֹי (nation), קָהָל (assembly), עֵדָה (congregation), can be used in that way; and the meaning of "will you slay a nation, even a righteous one" is clearly referencing a named entity, since it says: "you have brought upon me and upon my kingdom a great sin" (Gen. 20:9). — "And the reason for 'she shall not go out as the male slaves go out'" — their going out is always after six years; for this one too goes out if six years have elapsed, as it is written: "when your brother, the Hebrew man or Hebrewess, is sold to you, he shall serve you six years" (Deut. 15:12) — but if she reaches the time when she is her own mistress before the six years, she goes out then. — "If she is displeasing" — meaning he found no favor in her in his eyes after he acquired her to marry her. This is the meaning of "who designated her for himself" (אֲשֶׁר לוֹ יְעָדָהּ): she was designated for him to become his wife, or he designated her to be his son's wife. Know that לוֹ is the Keri, but the written form (Ketiv) appears inside with an alef and outside with a vav. The Gaon said that it has two meanings, like: "He made us, and we are His (לוֹ אֲנַחְנוּ)" (Ps. 100:3) — the one meaning: we did not make ourselves; the second: we are His. In my view the second is the sole truth, and all such cases are so. — R. Judah the Grammarian said: we cannot distinguish in pronunciation between לֹא with alef and לוֹ with vav or he, as in "is it (הֲלֹה הִיא) in Rabbah of the children of Ammon?" (Deut. 3:11) — all such verses have alef in the written form and vav in the read form; in each case the reading represents the actual meaning. Know that וְהִפְדָּה is one of the transitive verbs, like וְהַפֹּדְךָ (Deut. 13:6), "who redeemed my soul" (II Sam. 4:9), "I will redeem them" (Zech. 10:8). Thus וְהִפְדָּה is a transitive verb taking two objects, like "who makes grass grow" (Ps. 147:8), or like: Reuben fed Simeon bread. The meaning of וְהִפְדָּה is that he seeks her redemption price and receives it — whether she redeems herself, or her father, or one of her relatives does so. For if she is approaching six years, they calculate how many years she has already served and how many remain until the seventh year, or until the time when she is her own mistress, and the redemption price is set accordingly. — "To a foreign people" — I have explained. Know that any people that is not Israel is called נֵכָר (foreign); it is not like זָר (stranger), which refers to someone outside one's own family or tribe. Now, if we say that Israel are called Hebrews because of Eber — and he was a servant of God — then whoever is of his family and faith is called Hebrew. And if we say it is because of Abraham, then behold it is written: "for through Isaac your seed will be called" (Gen. 21:12), even though it is written regarding Ishmael, "for he is your seed" (ibid., v. 13) — the land was given to Isaac alone. Isaac's sons were Jacob and Esau; and to Isaac it is written: "for to you and to your seed I will give all these lands" (Gen. 26:3). Thus only Jacob is reckoned as his seed to whom the land was given. Therefore the children of the concubines and the children of Esau are considered foreigners among them.

אם רעה בעיני אדוניה, even though the normal procedure is what we outlined in verse seven, her “master” does not have to marry her if he finds her incompatible, as otherwise he would eventually come to hate her. However, in such a situation the father and the master have to cooperate in releasing her from her obligation as servant. לעם נכרי לא ימשול למכרה בבגדו בה, the father of the girl in question who had already betrayed her by “selling” her initially. We know that even Lavan’s daughters were angry at what they considered their father having done when he “sold” them into marriage. (compare Genesis 31,15) The Torah describes here the negative impression it makes on any of his peers when he observes a Jewish father selling his daughter’s services for something other than marriage. Once an employer/prospective husband, has done this no other Jewish father is allowed to sell his daughter to such a man. [the word נכרי does not refer to a non Jew, but to a Jew who acted contrary to Jewish mores. Ed.]

אשר לא (ו) יעדה והפדה, who has espoused her to himself, then he shall let her be redeemed. The reason the word lo is written with the letter א while it is read as if it were spelled with the letter ו, is explained in Kidushin 19 to mean that her espousal must meet with her approval. The master cannot marry her against her wishes. The Talmud derives it from the word יעדה. The Torah therefore begins the verse with "if she is displeasing in the eyes of her master" as describing a hindrance to the marriage which originates with the master. Concerning a hindrance due to the girl, the Torah writes אשר לא יעדה, to indicate that she was the party who did not agree. As a result, i.e. if either party declines to marry the other, והפדה, the legislation of facilitating her release by deducting time not served becomes applicable. If the parties agree to marry, there is no cause for the girl's prior release. לעם נכרי, to another party, etc. The Torah has to legislate this in order to inform us that though the father has a right to sell his daughter, he does not have the right to sell her לעם נכרי. The words לא ימשול למכרה "he has no auhority to sell her," indicate that if the father sold her without a view to eventual marriage by her master or his son, such a sale is invalid because he has betrayed the girl's trust. The moment the father or the master has betrayed his trust he has forfeited every right to buy or sell this girl. Another aspect discussed in Kidushin 19 is the right of the father to sell his daughter to a master who is forbidden to marry her by Jewish law, such as a widow to a High Priest or a divorcee to an ordinary priest. By precluding the father's right to sell his daughter to עם נכרי, a member of an alien people, the Torah implies that a sale to the above-mentioned categories is legally valid seeing the buyer is a Jew.

אבל אם רעה, “but if she is ugly, etc.” the term רעה while often used to describe moral ugliness, is also used to describe physical ugliness, i.e. being “sourfaced,” as we know from when Joseph asked the baker and cupbearer who had dreamt dreams which had upset them. Compare Genesis 40,7: ?מדוע פניכם רעים היום, “why do you look so crestfallen today?” בעיני אדוניה, “in her master’s eyes;” so that he does not wish her to remain in his house as a prospective bride until she will have completed her years of service; יעדה, based on the word מועד, “appointed time;” it is used here as in Samuel II 20,5: מן המועד אשר יעדו, “from the appointed time that he (David) had set for him.” The spelling and reading of this word are יעדה and יעדו respectively. The first word in the phrase is written in the Torah לא but read as לו. Since the sound of the two words is identical, we use both words in the interpretation: “She was not meant for him.” והפדה, “in order to release her.” Seeing that neither her master nor his son are prepared to marry her, and he does not want her to release herself, but prefers for her to continue to work for him on a socially demeaning level, he has to release her and pay her some compensation. [We must remember that her master had paid her father in advance for up to six years service. Ed.] והפדה, according to Rash,i he must contribute to the cost of cancelling her contract, i.e. that she must repay for the years of the contract she had not fulfilled her part of. The master must forfeit part of what he could have claimed, as his contribution. You might well ask what the difference is between גרעון and סיוע? (verse 10) Since she has repaid the master for the years she has not worked, what loss did the master experience? Her value as a maid increased with every she grew closer to puberty. We might therefore have assumed that the value of her work is not based on the same amount each year. By not getting back more per year for the last three years this girl did not work, than for the each of the first three years when she was quite young, the master actually did experience a loss, גרע, by releasing her from her contract early. לעם נכרי, “to an unrelated person;” (compare Ibn Ezra) to anyone other than her master he must not “sell her” to have dominion over her. לא ימשול למכרה, “he must not abuse his position of mastery to marry her off to someone other than himself or to his son.” למכרה, “to hand her over.” We find this term used in this sense also in Judges 4,9: כי ביד אשה ימכור ה' את סיסרא, “for the Lord will hand over Siserah into the hand of a woman.” בבגדה בה “seeing he had betrayed her trust.” By not going through with his promise to marry her when she was old enough, he had betrayed her trust. The expression “betrayal” occurs often in relationships between husband and wife. It describes usually the break up, severance of married life with a partner. Our author quotes verses from Maleachi 2,14, and Jeremiah 3,20, where the prophet in each case refers to Israel having betrayed its relationship with Hashem. Some commentators understand the words: לעם נכרי as referring to a Canaanite, seeing that Canaanites are referred to as נכרי in Judges 19,12: אל עיר נכרי אשר לא מבני ישראל המה, “to a foreign city that does not belong to the Children of Israel.” Also in Kings I 8,41: ובא הנכרי אשר לא מעמך הוא, “or if a foreigner who is not a member of your people comes, etc;” there too the reference is to the Canaanite. Some commentators explain the words as follows: the subject of the word והפדה, is not the girl’s master but her father; he will have the right to cancel the contract and get his daughter released from its terms seeing that he who had purchased her has reneged on his promise to marry her. לעם נכרי, “to any other nation;” i.e. the father does not have the right to sell his daughter to anyone but a Jewish master. He might have been under the impression that since the Torah permitted him to sell his daughter while she is a minor, it does not matter to whom he sells her. After all, seeing that the Torah did not forbid him to sell himself to a gentile if his fellow Jews did not help him to stay financially afloat, so why could he not do the same with his daughter? Therefore the Torah had to expressly forbid him to do this. בבגדו בה, “for having betrayed her,” as it was not proper for him to sell her, but he did sell her.”

אם רעה בעיני אדוניה אשר לא יעדה, “if she is displeasing in the eyes of her master who had designated her for himself (as a wife).” Nachmanides writes that anyone who “buys” a Jewish daughter does so with a view to marrying her. She is automatically considered as designated for her master as a wife. If, after getting to know her while she worked for him, he changed his mind, her father has to assist in her redemption (the word והפדה refers to the first subject in the verse, i.e. the word איש). It is forbidden for the girl’s father to allow her to continue in the service of a man who does not plan to wed her after the master expressly says: “I do not want her.” He has no authority to sell her to a Gentile master. Even though the Torah permitted the master of a Hebrew servant to sell him to a Gentile (compare Leviticus 25 47) where sale to a גר תושב, a resident stranger is expressly permitted, this permission does not apply to girls. This is in order to ensure that Gentiles do not treat Jewish girls or women as inferior. This is the plain meaning of these verses. Thus far Nachmanides. בבגדו בה, “seeing he has betrayed her.” He would have betrayed her if he sold her to a Gentile master. He can only sell her to someone who can wed her in accordance with Jewish law. There is a disagreement between the two scholars Rabbi Eliezer and Rabbi Akiva (Kidushin 18) on the precise meaning here of the words בבגדו בה, “seeing he has betrayed her.” One of the scholars traces the word בבגדו to the word בגד, “garment,” whereas the other scholar understands is as בגידה, “betrayal.” Rabbi Akiva who holds that it is connected to בגד bases himself on the principle of יש אם למקרא that the reading of the text is more authoritative when it conflicts with the spelling. The reading is based on the word לו as we read the word לא as if it had been spelled with a ו, meaning the master had designated her for himself. By becoming betrothed to her master at the time she entered his service he had placed her under the protection of his mantle, figuratively speaking. Once her master had done this he is no longer free to sell her. Rabbi Eliezer, on the other and, believes that the spelling is of greater weight whenever there is an ambiguity in the meaning of the words, a principle known as יש אם למסורת. In our case the spelling of the word לא is with the letter א meaning “no” i.e. he had not betrothed her to himself. Rabbi Akiva sees an ambiguity even in the word בבגדו-בה itself, being convinced it means “when his garment was on her,” seeing that if it were derived from בגידה, betrayal, the vowel under the second letter ב should have been a chataf kametz instead of a chirik which is proof that it is derived from בגד, a word in which the basic vowel segol always turns into a chirik when it appears in the possessive form. The word בה is to be understood as עליה, “upon her.” The word בה also means עליה in Nechemyah 2,12 הבהמה אשר אני רוכב בה, “the beast which I ride on.” Rabbi Eliezer understands the word as derived from בגידה even though the vowel pattern does not appear to support his theory. The reason is that he considers the word not as a possessive form but as an infinitive. The vowel chirik as such would be perfectly in place. A Biblical example supporting his theory would be Leviticus 26,26 בשברי לכם מטה לחם, “when I break for you the staff of bread.” The reason the Torah writes בה, (according to Rabbi Eliezer) is that the preposition used with the word בגד, betray, is always the letter ב. To quote but two examples: (Malachi 2,14 and Malachi 2,15) אשת נעוריך אשר בגדת בה, “the wife of your youth whom you have betrayed; or ובאשת נעוריך אל יבגוד, “and let no one break faith with the wife of your youth.” On that same folio of the Talmud Rabbi Shimon holds that we pay halachic attention to both the spelling and the reading so that we can derive two rulings from the verse. A Midrashic approach (Shemot Rabbah 30,5) on the words וכי ימכור איש את בתו לאמה, “G’d said to Israel: “I had an only daughter (the Torah) and I sold her to you (collectively) as a maid-servant. You are not allowed to remove her from the house unless she is securely (encased) dressed, in an appropriate ark; this is the meaning of the words following לא תצא כצאת העבדים, “she is not to leave (the house) in the manner of male servants.” G’d says: ”I charge you to treat the Torah with honor and respect seeing that you have captured her after she had been My companion previous to Matan Torah, the giving of the Torah.” The Midrash bases itself on Psalms 68,19: “you (Moses) went up to the (celestial) heights having taken a captive.” The Midrash continues by explaining the words אם רעה בעיני אדניה, “if she becomes displeasing in the eyes of her master,” i.e. that the Israelites have become wicked, not performing the commandments of the Torah. לעם נכרי לא ימשול למכרה, “He (G’d) never agreed to sell her (the Torah) to any other nation except to Israel;” so how could Israel betray her?!

לעם נכרי לא ימשל למכרה, “he must not sell it to a member of a different family.” Our sages deduced from this wording that a father must not sell his daughter into service again after she has been released from her first master. Similarly, her first master, instead of releasing her, is also prohibited to sell her services to someone else, seeing he has not kept the promise that was implied when he first acquired her services contractually from her father. He had betrayed her trust by not marrying her when she attained the age of puberty or shortly thereafter. It is also possible that the meaning of our verse is to inform us that the criteria which apply to someone who sells himself, occasionally even to a gentile (Leviticus 25,47) if he cannot find a Jewish employer who pays his wages years in advance, so that he can pay back money he owes, are not the criteria that apply to a young girl’s father, or her employer, although, basically, her father had the right to sell her services as had her employer to buy her services, effectively preventing her from quitting he employment prematurely. This is why the Torah warns that no father has the right to sell the services of his daughter to a gentile. The Torah adds that if the father had bought his daughter out of her original contract (when it became clear that her employer had no intention to marry her, for instance) he is not allowed to sell her services to a gentile instead. He cannot do so even for a very short period of time. Another possibility of understanding our verse is: “when a father is about to sell the services of his daughter the minor, his authority is restricted to his doing so to a Jewish employer.” At any rate, at all events we derive from this verse that a second sale of the same girl by either the father or her former employer is absolutely prohibited. The extra wording in the verse that enables us to derive this rule is בבגדו בה, “seeing he has betrayed her.” The prohibition not to sell her to a gentile would have been clear from the words לעם נכרי לא ימשול למכרה, “he has no authority to sell her to a gentile.” Nachmanides writes that the plain meaning of the verse is as follows: when a man sells his daughter’s services the rules of her release from service are not identical to those applying to males mentioned earlier, such as her being wed by her employer, for instance. If this is the case, the father cannot redeem her by some means to prevent her becoming married to said employer. [the girl herself can, of course, decline such offer of marriage. Ed.] If she does not find favour in the eyes of her employer so that he wants to marry her, the father cannot sell her services instead to anyone else, seeing that he had betrayed her originally by selling her services to someone who had no intention of making her his wife.

אם רעה בעיני אדוניה, and as a result he does not want to keep the implied agreement to marry her, she will not leave his employ in the manner her male counterparts would leave, but, seeing that he committed a breach of trust by not finalising the deal and marrying her (violating what the prophet Maleachi 2,14 called “the Lord is a witness between you and the wife of your youth with whom you have broken faith, although she is your partner and covenanted spouse,”) והפדה, the master has to assist her by releasing her prematurely, by allowing her to compensate the employer for unexpired years of service. IN HIS BREAKING FAITH WITH HER - Since he is breaking faith with her in that he does not designate her, as it is written in Malachi (2:14) regarding the wife of one's youth, "you have broken faith with her, though she is your partner and covenanted spouse." HE SHALL LET HER BE REDEEMED. He reduces her redemption price and she goes out through redemption, according to the number of remaining years.

והפדה, “he must help her to obtain her freedom;” the unusual phrasing means that he must do more than the law requires to give her freedom, i.e. enable her to avoid having to become someone else’s “slave” due to her being penniless. Rashi explains our verse as follows: if the servant girl had been sold for six years service, for say 600 dollars, and she had only worked for two years, she must give him 400 dollars upon her going free. If you were to ask what did her master loose in that scenario, seeing that he had received the correct percentage of the work performed? The answer is that the girl’s services becoming worth more every year she grew closer to adulthood, the master had paid her for work performed while she was too young to be worth what he had paid for. In other words, the master did sustain a financial loss by her early release.

And if he designated her for his son, he shall deal with her according to the law applicable to the daughters of Israel.

ואם לבנו יעדנה AND IF HE HATH BETROTHED HER TO HIS SON — “He” means the master (not like “he” in the previous verse where it refers both to the master and to the father). The verse teaches you that the son also may succeed to his father’s rights to betroth her to himself, if his father consents to it. Then it is not necessary for him either (just as is not obligatory for his father; cf. v. 8) to perform another act of betrothal, but he merely says to her: “You are designated for me as my wife by means of the money which your father has received from my father as your price” (Kiddushin 19a). כמשפט הבנות [HE SHALL DO UNTO HER] AFTER THE MANNER OF DAUGHTERS — who may claim food, clothing and marital duty (Mekhilta).

AND IF ‘YI’ODENAH’ (HE ESPOUSE HER) UNTO HIS SON, HE SHALL DEAL WITH HER AFTER THE MANNER OF DAUGHTERS. In line with the plain meaning of Scripture, it is possible that G-d is saying that if the buyer yi’odenah for his son, which means that he espoused her to him — for the term yi’ud is an expression of appointing, such as: he tarried longer than the set time which ‘y’ado’ (he had appointed him) — then he shall do unto her after the manner that a man does for his own daughters — he is to give her of his own according to the dowry of virgins. He thus commanded this as He did in the law of outfitting the emancipated servant, and it is all an expression of His goodness, magnified be He! And in accordance with the interpretation of our Rabbis, which is the truth, the meaning of the verse is: after the manner of daughters whom parents marry off, so shall the son [of the master] deal with her. And then He explains [what is “the manner of daughters”] that if he take him another wife, her food, her raiment, and her conjugal rights — that is, of this one [the former maidservant] — he shall not diminish. It is obvious that if he did not marry another woman he must not diminish her rights, but Scripture speaks of that which is usual. Now Rashi explained: “sh’eirah means food; k’suthah is, as the literal sense of the word, raiment; onatha is the marital duty.” And so did Onkelos render sh’eirah: zivanah (food). But in the Gemara the Rabbis said with reference to the Sage who held this opinion [that sh’eirah means food]: “And this Tanna holds that the alimentation of one’s wife is a law of the Torah. For we have been taught: sh’eirah — this means her food, and so it says, He caused ‘sh’eir’ (flesh) to rain upon them as the dust etc.” And from the subject under discussion in that Gemara it is understood that this is the opinion of a single Sage, whilst the accepted law is that the alimentation of one’s wife is a Rabbinical enactment. And even according to the plain meaning of Scripture, why should it mention food under the term sh’eir which means “flesh;” it should rather have mentioned lachmah (her bread), for man lives by bread and his obligation towards her is [mainly] in that sustenance. Now Rabbi Abraham ibn Ezra thought to correct this, and so he explained sh’eirah as meaning food which builds up her sh’eir, namely her flesh. But there is no sense in Scripture saying that the “husband diminish not her flesh!”Therefore I say that the meaning of sh’eir everywhere is flesh close and near to one’s own, the root thereof being derived from the expression sh’eir b’saro, that is his close flesh outside that of the flesh of his own body. Thus relatives are called sh’eir: to any sh’eir b’saro’ (that is near of kin to him); they are ‘sha’arah’ (near kinswomen), this being associated with the expressions: surely thou art my bone and my flesh; of whom the flesh is half consumed. Similarly, And I will cut off from Babylon a name, ‘ush’ar’ offshoot and offspring, me...

"And if to his son he designates her" — on the pattern of יִירָשֶׁנָּה (he shall inherit her); מוֹעֵד is like מוֹקֵד. — "According to the ordinance of daughters" — the daughters of Israel who are virgins and were not themselves sold. — "He shall do for her" — both the son and the father, if it is the father who takes her.

כמשפט הבנות יעשה לה, his son. [the employer’s son if he will marry her. Ed.] He will have to provide these three items to his bride even though he did not formally betroth her or purchase her. [something his father had done. Ed.]

ואם לבנו ייעדנה, And if he espouse her to his son, etc. This means that the master never espoused her to himself, but intended her as a wife for his son when he bought her. The Torah informs us that this is perfectly in order, i.e. the money the father had paid to the girl's father for her is acceptable as the money for the betrothal to his son. The words כמשפט הבנות יעשה לה, he shall deal with her after the manner of daughters, apply to both the father (master) and to his son. The verse following will spell out exactly what these obligations are that the master/son assumes when purchasing such a maidservant.

כמשפט הבנות, “according to the norms applying to daughters.” Normally, men betroth attractive girls to themselves and marry them, and celebrate the wedding with joy and decor, not like when one takes a lowly maid as a wife.

ואם לבנו ייעדנה, “but if he designated her (as a wife) for his son, etc.” If the master had intended to marry the girl in question herself, no additional act of betrothal is necessary as the money he paid to her father when he “bought” the girl constitutes the money or equivalent a groom has to give to the father of a minor. He had to add the words הרי את מקודשת לי, “you are betrothed to me, etc.” (according to Maimonides hilchot avadim 4,7) If, however, he had not meant to marry her himself but had intended for his son to marry her, then the Torah adds: כמשפט הבנות יעשה לה, “he has to deal with her according to the rights of free women.” She is a Jewish girl and the master acts as her father in this instance. In practice this means that her master (the groom’s father) must provide the appropriate (22,16) dowry for her from his own funds. Seeing that she is a Jewish girl, all the provisions the Torah has made in Deut. 15,14 that the master has to provide a stake for a Jewish servant who is released from service are to apply to her also. This is an act of kindness towards her by G’d. A different way of understanding the words: “like the rights of Jewish daughters he shall do for her,” could be that these words form the introduction to the Torah spelling out these rights in detail as שארה כסותה ועונתה לא יגרע, “she must not be disadvantaged compared to others in her entitlement to food, clothing, and marital relationship.” The master has to provide the equivalent when she marries his son. Rashi explains that the word שארה refers to entitlement to be fed, whereas the word כסותה refers to her clothing allowance, and the word עונתה, refers to her entitlement to marital relations at no fewer than designated intervals. Nachmanides differs with Rashi claiming that the meaning of Ketuvot 47 upon which Rashi based his commentary, i.e. that the obligation is Biblical rather than Rabbinic in origin, is certainly only the opinion of a single scholar which is not shared by his colleagues. That scholar based his understanding of the word שאר on Psalms 78,27 וימטר עליהם כעפר שאר, “He rained meat on them like dust.” According to Nachmanides this is surely an isolated view as is evident from the continuation of the discussion in the Talmud on that folio. The consensus in the Talmud is that providing food is a Rabbinic right of married women and cannot be attributed to legislation in our verse. Keeping all this in mind, Nachmanides explains the word שארה to mean “her right to intimate relations.” In most other instances where the word שאר appears it means a “bodily relation, a close relative.” Our sages Yevamot 22 explained that the word in Leviticus 21,2 כי אם לשארו, means “except for his wife,” i.e. the priest’s closest bodily relation. Such a close relationship between husband and wife has already been described in Genesis 2,24 to show that it is a closer natural bond even than that between father and son, or son and mother. According to Nachmanides the word כסותה would mean “her cover,” i.e. the blanket covering her and her husband in the same bed. The word appears in that sense in 22,26 כי היא כסותה לבדה במה ישכב, “for it is his only cover, what would he lie down with?” Thirdly, the word ועונתה would refer to the period when her husband will join her for the purpose of marital relations. This then would be the detailed meaning of the caption משפט הבנות, “the rights of the young women.” The reason this last word had to be added is to assure this girl who considers herself rejected in favor of some other woman should not be treated like a concubine who is slept with at whim and on the floor, while the other woman is treated royally on an honorable bed. Our sages (Ketuvot 48) also add that the word שארה describes marital relations when one is in a state of undress, not like the Persians who do not even bother to disrobe when the men sleep with their women. The Torah used refined language to describe its meaning. The three items mentioned here are matters which man and wife have in common. The items discussed by Rashi, while entitlements of the wife, are of Rabbinic authority.

ואם לבנו ייעדנה, “if he had intended her as a wife for his son;” the expression ייעדנה is equivalent to the Torah writing “הזמינה,” “invited her.” The expression occurs in this context in the Scriptures in Samuel II 20,5 מן המועד אשר יעד, “than the time planned for him.” כמשפט הבנות יעשה לה, “according to the rights of young women he shall treat her.” A reference to the master’s son. The entitlements of the young women are spelled out as שארה, כסותה, ועונתה, her food, clothing, and marital rights.” She is not to be derived of all or any of her statutory rights. He must, in the event that he does not personally marry her, provide her with the equipment given to Jewish daughters when they are about to marry. These endowments are known as מוהר בתולות. These rights are parallel to the economic stake a master has to give a male servant upon his release from service after the requisite number of years, (usually after 6 years.) All of the above legislation is a demonstration of G’d’s loving concern for the economically underprivileged, whose experience in service was, after all, a result of such under privilege. Nachmanides writes, that according to the plain meaning of the text one may understand the legislation as the employer of the girl who intended her as a bride for his son having to give her a dowry out of his own pocket.

If he takes another wife for himself, he shall not diminish her sustenance, her clothing, or her conjugal rights.

אם אחרת יקח לו IF HE TAKE HIM ANOTHER WIFE — besides her, שארה כסותה וענתה לא יגרע HER FOOD, HER RAIMENT AND THE MARITAL DUTY SHALL HE NOT WITHHOLD — from the maidservant whom he has already designated as his wife. שארה means FOOD; כסותה means what the literal sense of the word is:RAIMENT; ענתה means THE MARITAL DUTY (Ketuvot 47b).

"If he takes another" — whether she is from the daughters of Israel who were sold or who were not sold. — "Her sustenance" (שְׁאֵרָהּ) — her food, that he shall provide her שְׁאֵר, which is her flesh. — "And her conjugal rights" (וְעֹנָתָהּ) — Some say this means her dwelling; and in their view, "the jackals shall cry in her palaces" (וְעָנָה אִיִּים, Isa. 13:22) and "she shall respond (וְעָנְתָה) there" (Hos. 2:17) are of the same root. In my opinion, "and the jackals shall cry" is taken literally, like "and you shall speak out (וְעָנִיתָ) and say" (Deut. 26:5) — by way of metaphor, for it is written there: "and a wild-goat shall call to his fellow" (Isa. 34:14). Similarly, "she shall respond (וְעָנְתָה) there" (Hos. 2:17) shall be sung, as in "respond (עֲנוּ) to Hashem with thanksgiving" (Ps. 147:7). The meaning of וְעֹנָתָהּ is conjugal times, the time of love — for the word עֵת (time) is spelled without the nun, as אֱמֶת is without a letter, hence the tav is doubled; and so עִתֵּךְ (Ezek. 16:8) and עִתּוֹ like אַמִּתּוֹ; likewise עַתָּה — עֹנָתָהּ is from the root עֵת, and עַתָּה is "this time."

לא יגרע, one does not have the right to marry more than one woman unless able to provide for them not at the expense of reducing the first wife’s allowance. (Yevamot 65)

ועונתה, some commentators believe that the root of this word here is עון as in Isaiah 13,22: וענה איים באלמנותיו “ and the wild beasts of the islands shall cry in their desolate palaces.” The letter מ in the word מעון having been replaced similar to the way it has been in the words: מלון, מזון and מדון our verse then would prescribe that if, after marrying the young girl he married additional wives, she continues to be entitled to receive from her husband food, clothing and housing.

שארה, according to Rashi this is a reference to her entitlement to food. According to Nachmanides [who considers the opinion expressed about this as that of a single scholar, not binding, and not halachically accepted as being of such axiomatic nature. Ed.], this line according to the plain meaning refers to conjugal marital rights, the word שאר normally meaning גוף, body, especially when referring to family relations. Nachmanides views the meaning of the word as an expanded version of one’s own personal flesh, i.e. genetically related relations, “blood relations.” We know from Lavan that he said to his nephew Yaakov “אך עצמי ובשרי אתה,” “after all you are my bone and my flesh.” (Genesis 29,14). Flesh that is consumed, eaten, is also called שאר as we know from Psalms 78,27: וימטר עליהם כעפר שאר, “He rained meat on them like dust.” [a quantity of meat as generous as the dust on earth. A reference to the Israelites in the desert, compare Numbers chapter 11. Ed.] The reason why it is called this is that meat has a tendency to attach itself to other food. Blood relations also have a tendency to cling to one another. The description by the Torah of conjugal rights of intimacy by the wife as something anchored in law is therefore quite understandable. Naturally, this right is mutual, the husband being reciprocally entitled to intimacy with his wife’s body. כסותה, “her covering,” i.e. bed covers. עונתה, “her entitlement to conjugal relations.” At least after her having ritually immersed herself. לא יגרע, “he must not diminish.” He must not marry another woman in addition, and thereby reduce this former servant’s status to that of a concubine both in appearance and by her reduced conjugal rights The second wife is not to sit on the bed of the first wife, thereby causing her mental anguish. Any marriage to an additional wife must not be at the expense of the first wife.

שארה, her provisions (food) as in Micah 3,3ואשר אכלו שאר עמי, “the ones who devoured the flesh of my people.” כסותה, her clothing ועונתה, her accommodation, housing, the word is a derivative of מעון, a residence. The letter מ in the word מעון is similar to the letter מ in the word מקום, “place, site,” or in the word מלון, “inn.” It is not an integral part of the noun. In other words, the rejected bride must be provided food, living quarters and adequate clothing. [all of the above would have been hers automatically if her master had honoured his original undertaking. Ed.]

And if he does not do these three things for her, she shall go free at no charge, without payment of silver.

ואם שלש אלה לא יעשה לה means IF HE DO NOT one of THESE THREE UNTO HER. What are these three? He should designate her to himself as his wife, or to his son, or allow her a deduction from the ransom so that she may go free (Mekhilta). This man, however, has neither betrothed her to himself, nor to his son, and she herself does not possess the entire sum paid for her originally that she might buy herself out, therefore shall she go out free without money. ויצאה חנם THEN SHALL SHE GO OUT FOR NOTHING (i. e. without making any payment) — Scripture adds in her case one more way of acquiring freedom than it provides for menservants. What is this additional way of acquiring freedom? This verse teaches you that she goes free also on account of having shown signs of incipient puberty: but she must stay with him until she reaches this stage of incipient puberty. For that she goes free if the termination of the six years happened to come before the signs of incipient puberty we have already learned, since it is said, (Deuteronomy 15:12) ,‘[and if thy brother], an Hebrew man, or an Hebrew woman [be sold unto thee], and serve thee six years [then in the seventh year thou shalt let him go free from thee]” (cf. Rashi v. 7). What then must be the meaning of what is stated here, “she shall go out for nothing”? That when the signs of incipient puberty appear before the six years are at end she shall go out on account of them. Or perhaps Scripture states here that she shall go free only when she has reached the intermediate stage of womenhood (בגרות, fuller development after twelve years and a half), if this stage happened to be reached before the termination of the six years! To teach this Scripture states “without money” — which would be superfluous since it has already said “she shall go out חנם” — in order to add as another date of her acquiring freedom the time of her reaching this stage of womanhood. And though it necessarily follows that she goes free an reaching the state of בגרות since her freedom is brought about even by the earlier stage of נערות yet if Scripture had not used both terms (both חנם and אין כסף), I might have said that ויצאה חנם refers to the stage of womanhood; therefore both expressions are used in order to give a disputant no opportunity to offer a different explanation (i. e. Scripture wishes to be quite clear on the point in order to preclude all possibility of misunderstanding) (Mekhilta; Kiddushin 4a).

AND IF THESE THREE — designating her to himself as his wife, or to his son, or allowing her to be redeemed — HE DO NOT UNTO HER, then SHALL SHE GO OUT FOR NOTHING, WITHOUT MONEY, as do the menservants mentioned.

"And if" — Scripture used an abbreviated form, like "three measures of fine flour" (שָׁלֹשׁ סְאִים, Gen. 18:6) when the correct form would be הַשָּׁלֹשׁ הָאֵלֶּה. Many have thought that "these three" are שְׁאֵרָהּ, כְּסוּתָהּ, and עֹנָתָהּ — but this is not correct, for since it already said "as is the ordinance of daughters he shall do for her" (v. 9), which obligates him to these three, there is no need to mention them again. Furthermore, regarding the captive beautiful woman it is written: "you shall not sell her for money" (Deut. 21:14) — how much more so this one! Rather, the correct reading is: "and if one of these three" — meaning he does not marry her, does not designate her for his son, and does not redeem her — "she shall go out free," while she is her own mistress. Comparable to this: "if someone who is impure by a corpse touches any of these (בְּכָל אֵלֶּה), does it become impure?" (Hag. 2:13) — the meaning is "in one of these." There are many such cases. — The Gaon asked: What is the reason to say "without money (אֵין כֶּסֶף)," after it already said "she shall go out free"? And he answered that if she became ill in his household and he spent money on her medical care, he collects nothing. In my view there is no need for this; it is simply an amplifying explanation, in the manner of: "for you are a dead man, and shall not live" (II Kings 20:1).

ואם שלש אלה לא יעשה לה, If he fails to do these three things for her, etc. The three are 1) marrying her, שארה; 2) providing her with a clothing allowance, etc., כסותה; 3) maintaining marital relations with her at designated intervals, עונתה; the Torah stresses the word אלה, these, so as to exclude previous conditions such as the need to betrothe her. ויצאה חנם אין כסף, she may leave for nothing without money. Both master and son have lost their authority over this girl; they cannot force her to serve the balance of the six years her father contracted for, or until she displays signs of puberty. Rather the master has to give the girl a document releasing her if he does not decide to consummate the betrothal. The words "without money," mean that there is no need for money to change hands whereas there is a need for a divorce document releasing her as the Torah considered the girl as betrothed to her master ever since her father had sold her. Our sages in the Mechilta add that the words אין כסף also mean that whereas the maidservant does not have to compensate her master financially if he failed to meet the conditions mentioned, she can also gain her freedom by merely attaining the age/or signs of puberty. All of these rulings are of Sinaitic origin, independent of any allusions in the text. Seeing that the rulings are not dependent on allusions in the text, we are free to see in the text allusions to moral/ethical values, i.e. רמזים. We are basing ourselves on Sotah 42 that when the word איש appears by itself, i.e. without a name, the subject is G'd Himself, such as in Exodus 15,3. Our sages in Shir Hashirim Rabbah chapter 3 have said further that G'd insisted on expressing His fondness of the community of Israel by referring to it as His daughter. We also find that Scripture defines exile of the Jewish people as G'd having sold the Jewish people (compare Kings I 12,9). Inasmuch as the Torah legislated that if one acquires a male Jew as a slave he has to serve six years and no more, the Torah i.e. the Jewish people, is portrayed here as complaining to G'd why if the male Jewish slave should have to serve only six years, a Jewish girl, אמה, may have to serve longer; the Torah says that such a maid-servant will not automatically leave her master's employ after six years as does her male counterpart. In other words: "why has the Jewish people (the daughter) been sold into this long and bitter exile? Why are they not entitled to be treated in accordance with the male Jewish servant described in our chapter?" The Torah (Israel) repeats the argument by saying: "assuming that the girl is רעה, still guilty of the sins that caused her to be exiled in the first place (compare Isaiah 50,1: 'you have been sold on account of your iniquities') in the eyes of her master to whom she has been betrothed," after all she was also G'd's betrothed," as has been spelled out in Song of Songs 4,8? To this question the Torah (G'd) replies that the word לו in אשר לו יעדה...

ואם שלש אלה, “if he fails to provide any of these three items, she will leave his house without paying the master any compensation for leaving his employ before her contract had been completed.” (Ibn Ezra) ויצאה חנם, “she will leave, with the consent of the court;” the Torah here does not specify a particular point in time, but does so at a later time in Deuteronomy 15,12, where we read: כי ימכר לך אחיך העברי או העבריה ועבדך שש שנים, “when your brother the Hebrew is forced to sell himself to you or your sister a female Hebrew, he/she is to serve (work for) you for six years.” אין כסף, “if she falls sick at the end of her six years and is unable to leave, and her master supplies her with food, she need not compensate him for this. (Based on Torah shleymah by Rabbi Menachem Kasher Mishpatim, quoting Jerusalem Talmud, item 230 on our verse.) According to the simple meaning of the text, the words: אין כסף which are superfluous after the word חנם, “without compensation,” are a way of underlining the statement, just as the statement מת את ולא תחיה, “you are dead and will not live.”

ואם שלש אלה לא יעשה לה, “and if he does not perform these three for her, etc.” If he does not marry her himself, nor give her to his son as a wife or allow her father to release her, as per the word והפדה, then she leaves the employ of her master without having to compensate him for breach of contract and her father cannot prevent her from leaving. If even her father who had the right to sell her has lost his authority over her, her master whose authority over this girl never equaled that of her father most certainly cannot detain her. All of this is contained in the words ויצאה חנם, “she goes out free.” If you were to argue that her master can demand part of his purchase price back from her father, the Torah wrote the word חנם, “without compensation,” to make it clear that the father also does not have to compensate a master who had not honoured his undertaking. If you were to say that her master has to compensate her financially for having disappointed her, the Torah adds the words אין כסף, meaning she has no financial claim on him because he did not marry her. These are the words from which our sages learned in Kidushin 4 that a maidservant acquires her freedom merely by displaying signs of puberty.

שלש אלה, “these three,” the three options the Torah provided to the master-employer, 1) to marry her herself; 2) to make her his son’s bride; 3) to release her before her contractual 6 years of service have expired if she showed premature signs of puberty. No compensation for time not served is due her master/employer in such or similar circumstances.

ואם שלש אלה, that he neither wants to marry her himself, nor have her marry his son, nor allow her to buy herself out of her contract, ויצאה חנם אין כסף, the court will declare her free from her contract without her owing the master-employer any compensation for unexpired years of service. Our sages, (Kidushin 4) understood the verse halachically as meaning that she is entitled to leave that employ upon the signs of puberty without reference to the Jubilee year or the expiry of the six years for which her father had contracted her to the employer.

ואם שלש אלה לא יעשה לה, “and if her master had not performed any of the three options offered him by the Torah, etc.” Rashi spells out what these three options were; a) he marries her; b) his son marries her; c) she pays to redeem herself. The interpretation of the three options do not refer to her enduring upon being married to her former master that her husband marries someone else in addition, less frequent opportunities to marital relations with her husband. Her entitlements to clothing, marital relations are unimpaired. When she reaches puberty she goes free and must receive a definite document of divorce to ensure that she can marry without problems. ויצאה חנם, “she will leave for nothing without money” (to her master). This verse speaks of her leaving after having attained the status of נערה, the period between twelve years and a day, and twelve and a half years. The additional words: אין כסף, “without money changing hands,” apply to a situation in which she has attained the status of בגרות, biological maturity, i.e. over twelve and a half years of age. (Talmud, tractate Kiddushin folio 4) The reason this had to be added is that if the Torah had not written this, we would have assumed that already the words ויצאה חנם apply to her having this status, which would have been a simple assumption to make. In the event that you the reader would raise the question that seeing that this girl is legally entitled to leave the employ of her master already when having attained the status of נערה, why would the Torah have to add anything further, the answer to this question given by the Talmud we quoted, is that if she had displayed symptoms of being unable to bear children, i.e. she never displayed the symptoms attesting to the fact that she had matured biologically, in which case the Torah rules that when she attains the age of twelve and a half she must be given her freedom regardless of any other considerations.

Whoever strikes a person and kills him shall surely be put to death.

מכה איש ומת WHOSOEVER SMITETH A MAN SO THAT HE DIE [SHALL SURELY BE PUT TO DEATH] — Many apparently redundant verses have been written in various sections of the Torah dealing with murderers and I shall explain to the best of my ability why all these statements have been made. מכה איש ומת WHOSOEVER SMITETH A MAN SO THAT HE DIE — Why is this said (how does the particular form of words used here tell us some point of law which is not contained in another text bearing upon the same subject)? Since it is said, (Leviticus 24:17) “And the man that smiteth (יכה) any person (more lit., the soul of any human being) [shall surely be put to death]”, I might have inferred that mere smiting without resultant death is subject to the death penalty. Scripture therefore states here, “Whosoever smiteth a man so that he die [shall surely be put to death]”, thus telling you that he is not punishable with death unless the stroke proves fatal. On the other hand if it had stated here, “Whosoever smiteth a man…” and it had not said there “If a man smiteth [any person]”, I might have inferred that the murderer is not guilty except if he killed “a man”; whence, however, could I know that he is subject to the death penalty if he killed a woman or a minor? Therefore Scripture states “And if [a man] smiteth any person”, thus including even a minor and a woman. Then again: if it had stated only, “Whosoever smiteth a man” I might have inferred that even a minor who smote and killed a person is punishable with death. Scripture therefore states “and if a man smiteth” — a man but not a minor. Then on the other hand, so far as concerns the statement “And if [a man] smiteth the soul of any man” it might be held that even premature births at a term of eight months are included in the term כל נפש אדם “soul of any man”, Scripture therefore states “Whosoever smiteth a man” to intimate that one is not subject to the death penalty unless he kills a viable child — one which is fitted to become a man (Mekhilta).

"He who strikes a man" — The reason this is mentioned after the subject of the male and female slave is that it is necessary to explain the law of one who strikes his slave or maidservant. This "man" is one of Israel. — "Shall surely be put to death" — Every case of "shall surely be put to death" (מוֹת יוּמָת) is subject to the court, except for one, as you will see shortly.

מכה איש ומת, He who strikes a man and he dies as result, etc. This means that death need not occur immediately, such as when one slaughters or chokes someone to death. The striker is culpable even if death is delayed but occurs directly as a result of his blow. The only exception to this rule is if the stricken person had recovered sufficiently to be able to stand on his feet and leave his home unassisted (verse 19). The new element in this legislation is that if the striker had struck the victim unintentionally he is not obliged to flee to a city of refuge unless death occurred as an immediate result of the blow (compare Gittin 70). The Talmud states there specifically that if the victim had vital parts such as most of the windpipe and the gullet severed the killer is not consigned to the city of refuge as we consider the possibility that his victim did not die immediately, or contributed to his accelerated death by making a wrong move. Tossaphot comment that this rule applies only in the case of an involuntary killing. They derive this from Numbers 35,23: ויפל עליו וימות, "he cast it upon him whereupon he died." This means that death did not follow immediately. Although a person who has done this intentionally will be considered guilty of murder even if the victim did not die immediately, we distinguish between the laws of confinement to a city of refuge and the laws dealing with murder. This corresponds precisely to what we wrote that our verse deals with someone who attacked someone else intentionally. If the Torah wanted to include unintentional killing it would have had to write הורג איש instead of מכה איש. As it is, even if the attacker set out to kill now but death occurred only several days later, the death penalty applies. Concerning unintentional killing, the Torah speaks of והאלוקים אנה לידו, "and G'd caused it to happen by his hand;" this means that death occurred by means of the hand of the killer himself, not a delayed effect. You will find this confirmed by Maimonides' ruling in chapter five of his Hilchot Rotzeach. Rabbi Shlomo Aderet, who frequently disagrees with Maimonides, disagrees in this instance also. I find his reasoning quite unacceptable. This is not the place to evaluate the finer points of their dispute, however. מות יומת, he shall surely be put to death. The reason the Torah repeats this word as well as in such instances as someone either cursing or killing his father or mother, and someone guilty of kidnapping, needs to be analysed. Remember that it is the prerogative of G'd, the judge of the whole universe, to kill perpetrators of evil. However, instead of doing so personally, G'd has assigned judges of flesh and blood to judge part of the crimes for which people deserve to be killed. These judges are to hand down death sentences for crimes/sins listed in the Torah as carrying the death penalty. In some instances G'd has revealed why certain crimes carry the death penalty, i.e. one to be administered here on ea...

מכה איש ומת, “if someone strikes a man and he dies as a result;” Rashi explains this as being based on Leviticus 24,17: ואיש כי יכה כל נפש אדם מות ימות, “if a man strikes a lethal blow on another human being it is a capital offence and the attacker will be subject to execution.” If you were to ask: “where did we ever hear that if a person strikes another and he does not die as a result, that he is still subject to execution? After all, even if he did cause his victim to lose a limb, he is only liable for monetary compensation? Some commentators have provided what is a very forced answer by saying that if the injury to the victim of the blow is such that he will die within 12 months that the attacker will be subject to the death penalty. Alternately, the verse could have meant that death resulted from a blow with an instrument not meant to cause death. Since we could have thought that he would still be guilty of the death penalty as it is the result that counts, the Torah had to write that unless the weapon used was of a kind that is used as a lethal weapon the killer is not liable to the death penalty. The reason why this paragraph follows closely after the paragraph dealing with how to treat a slave, is because most masters are in the habit of hitting slaves when they do not perform their duties diligently. The expression: מות יומת “he must certainly be executed,”by decree of the court, is meant to exclude the legislation applicable to a gentile slave.

מכה איש ומת מות יומת, “if someone strikes a man and he dies as a result the striker shall be executed.” Having concluded the legislation concerning Jewish servants, a subject conceptually linked to the first commandment on the first Tablet, the Torah returns to the first commandment on the second of the Tablets, the law about murder. Seeing that in the Ten Commandments the prohibition was spelled out without the penalty for transgressing it, the Torah now announces the penalty for murder. The verse speaks of an intentional, at least potentially lethal attack.

One who strikes a man and he dies shall surely be put to death. Many have endeavored to find an order for all the commandments in this section, and I have found such attempts in Toldot Yitzchak and in Abarbanel, but their words did not seem right to me, so I did not see fit to elaborate on them at length. I say that just as the Torah began with When you buy a Hebrew slave which corresponds to the commandment I am [the Lord, your God] and the commandment I am certainly includes all the commandments between man and God up until Do not murder, so too here it begins with One who strikes a man, which corresponds to the commandment Do not murder. This is parallel to I am [your God] and is the first of the five latter commandments that deal with relationships between people. Do not murder encompasses them all, for even one who commits monetary injustice is called one who strikes a man because he wounds the soul. With proper refined contemplation, one can find all Ten Commandments alluded to in this section. If I were to add explanations for each commandment, the discussion would be lengthy, and I have already decided to make this work as concise as possible. Therefore, I have withdrawn from this task, as it is too great for me. Of all the laws, I decided to add explanations for the laws of theft, because there are several different rulings regarding it. One who kidnaps a person and sells him is considered as if he has delivered him to death, because the buyer can do whatever he wishes with him, for captivity has all [the hardships] in it (Bava Batra 8b). Therefore, his punishment is death. And for one who steals property, he must pay double, because a person does not leave this world with half his desires fulfilled — if he has one hundred, he desires two hundred, etc. (Kohelet Rabbah 1:13). Similarly, this thief who was not satisfied with what he had certainly desires double all day, therefore his punishment is to pay double. A hint to this is that the word “money” [mamon] is made up of doubled letters — when you write Mem, Vav, Nun. But ordinary robbers break in and do not desire doubling. Additionally, the thief steals two things: the owner’s property and the knowledge of his Maker, which is not the case with a robber. And in the payment of four and five for stealing an ox or sheep and slaughtering it or selling it. Since its blood is sought here, and also to include the value of its potential offspring, because the male ox and the male sheep were capable of reproducing. We find in the Torah that Jacob sent 40 cows and 10 bulls, as each bull can impregnate four cows. Therefore, one must give four female cattle in place of the ox, plus a fifth cattle as a fine for the double payment. According to this calculation, one should have to give 11 female sheep in place of a male sheep, since each ram needs 10 females, plus one more for the fine. However, the Torah had mercy on him because of his humiliation in carrying the sheep on his shoulders, and reduced seven from him because of the humiliation, for human dignity is so great that it overrides [the requirement of] seven sheep. There is support for this from the verse People do not despise a thief when he steals… but if he is caught, he must pay sevenfold (Proverbs 6:30-31). The Ralbag explains that if the thief is found in the house of the owner of the stolen item, when he gives him seven for one, etc., it turns out that he gives seven because of his humiliation, for it is for the reason of he must pay sevenfold that it says do not despise a thief. And from where did Solomon learn to say that one should give seven for his humiliation? From the reduction of seven sheep from the 11, as mentioned.

מכה איש ומת, “if one strikes a man with fatal results, etc.” According to our sages the conceptual linkage between these apparently unrelated subjects is that when a capital punishment is imposed on someone for a crime normally involving compensatory financial damages, the sinner does not also have to pay financial compensation to his victim. The repetition of the words מות יומת implies that with his judicial death he has paid for all his crimes.

מכה איש, “if someone strikes an adult male, etc;” Rashi compares this verse with a similar verse in Leviticus 24,17, reading איש כי יכה, “when an adult male strikes someone,” explaining that both verses are necessary. Verse 14 here, commencing with “if someone deliberately strikes some with intent to kill, but tries to make it look as if it was unintentional,” is also needed as explained by Rashi on that verse, i.e. that unless it had been written, I would have thought that penalties are in place only when the aggression was deliberate with intent to harm or kill. Without our verse one could have thought that killing a woman or injuring her, or doing so to a hermaphrodite would not be punishable, or would be punishable less severely. Rashi explains all this on verse 16 in our chapter.

But one who did not lie in wait for him, and it was delivered into his hand from before Hashem — I will designate for you a place to which he may flee.

ואשר לא צדה AND IF A MAN LIE NOT IN WAIT — i. e. if he did not lie in ambush for him (the person whom he killed), nor did he premeditate the blow (Makkot 7b). צדה is a term denoting “lying in wait”; similarly it says, (I Samuel 24:12) “yet thou liest in wait (צדה) for my soul to take it”. It is, however, not correct to say that צדה is of the same derivation as, (Genesis 27:34) הצד ציד “he that hath hunted (הצד) venison”, for a ה has no place in the verbal forms of the term denoting “hunting beasts”. Then again, the noun form of the latter is צַיִד and that of the former צְדִיָה, whilst the participle of the verb “lying in wait” is צוֹדֶה and that of the other is צָד. I therefore say that its meaning is as the Targum gives it: “and if he did not lie in ambush for him”. Menachem ben Seruk placed it in the same section as הצד ציד (i. e. he held that the root is צד and that it has the meaning of “hunting”), but I do not agree with him. If it is to be placed in one of the sections of צד we had better place it in the same section as, (Isaiah 66:12) על צד תנשאו “ye shall be borne upon her side (צד)” and (I Samuel 20:20) “and I will shoot [three arrows] on the side thereof (צדה)”, and (Daniel 7:25) “and he shall speak towards the side of (against) the Most High”. Thus, here, the words אשד לא צדה could be taken to mean, “he did not turn aside (צִדֵּד)” to seek some side (occasion) for killing him. But there are objections even to this explanation. At any rate, even if it be connected with צד in this sense, it would still have the meaning “lying in wait”. והאלהים אנה לידו means, BUT GOD GOT IT READY FOR HIS HAND. It has the same meaning as this root has in, (Psalms 91:10) “No evil shall be got ready (תאנה) for thee”; (Proverbs 12:21) “There shall no evil be got ready (תאנה) for the just”; (2 Kings 5:7) “he gets himself ready (מתאנה) for me”, i. e. he gets himself ready to discover some occasion against me. והאלהים אנה לידו BUT GOD GOT IT READY FOR HIS HAND — But why should this go forth from Him (be brought about by God)? This is just what David tells us: (I Samuel 24:13) “As says the proverb of the ancient (הקדמני) “Wickedness proceededeth from the wicked”. — “The proverb of the קדמני” is the Torah, the maxim of God, Who it the “Ancient” (Whose existence preceded that) of the world. But where indeed does the Torah say, “Wickedness proceedeth from the wicked”? It says it implicitly in the verse: “But God got it ready for his hand”. For what is Scripture here speaking about? About two men, one of whom killed a person with premeditation and the other killed inadvertently, and in neither case were there witnesses to the deed who could testify about it. Consequently, the former was not put to death and the latter was not forced into banishment to a city of refuge (cf. Numbers 35:11). Now God brings them together at the same inn. He who killed with premeditation happens to sit beneath a ladder, and the other who killed inadvertently ascends the ladder and fa...

"But one who did not lie in wait" — like "by lying in wait for him" (בְּצִדְיָה, Num. 35:20) and "you hunt my life" (אַתָּה צוֹדֶה אֶת נַפְשִׁי, I Sam. 24:12); it thus denotes the sense of ambushing and acting deliberately. — "God caused it to come to his hand" — like "when he was seeking occasion against me" (כִּי מִתְאַנֶּה הוּא לִי, II Kings 5:7) — seeking pretexts and causes. The meaning therefore is that God contrived and arranged circumstances so that this person would die at the hands of that person, without it having entered his mind — and God brought this upon him on account of some other sin he had committed, in order that he should go into exile from his place. As it is written: "no harm befalls the righteous" (Prov. 12:21).

והאלוקים אנה לידו, this was not a death caused intentionally by the killer, but we know that there operates a principle in this world known as מגלגלין חובה על ידי חייב, “G’d arranges matters so that the guilty party being punished will be punished by someone himself guilty of something else.” This is what Solomon referred to in Proverbs 16,4 וגם רשע ליום רעה, “even the wicked for the day of evil.” [to the question if everything has a purpose in this world, what is the function of the wicked? Solomon answers that the wicked is used by G’d to administer punishment to those who deserve it. Ed.] ושמתי לך מקום אשר ינוס, to atone for his guilt by being exiled from his home.

ואשר לא צדה והאלוקים אנה לידו, If a man did not lie in wait but G'd caused it to happen to him, etc. Why did the Torah say the same thing in different words, i.e. "he did not plan it," and: "G'd caused it to happen?" Besides, why would G'd deliberately cause a person to become an involuntary murderer? Makkot 10 as well as the Mechilta dealing with the laws of the city of refuge and who has to go there, explain that the Torah speaks about wicked people who will become the instrument of performing evil deeds (compare Samuel I 24,14). They illustrate their meaning by the following example. Two people, one an intentional murderer, the other an unintentional killer, meet. There had not been any witnesses to either killing. The unintentional killer was in the process of descending from a ladder; he fell and hit the murderer who sat under the ladder with fatal consequences. The person descending the ladder has to go to a city of refuge. (If the same accident occurred while the unintentional killer was ascending the ladder, he would not have to go to the city of refuge). The intentional sinner was killed by the unintentional sinner. Thus far the Mechilta. This does not seem very satisfactory. True, the intentional murderer winds up getting his just deserts, the unintentional killer, however, has by now committed two killings and has to atone for only one killing while he is in the city of refuge. If we were to argue that he is altogether innocent concerning the instance when G'd made him fall off the ladder, then we must assume that the falling off the ladder was not an act of G'd and as a result the death of the person under the ladder was not the punishment due him as he was not guilty. Had he really been guilty then the fall off the ladder would have to be considered under the heading of "a deliberate act of G'd." This seems a very forced explanation as the Torah describes the example of an unintentional killing as unrelated to Divine interference (Numbers 35,15). The Torah did not distinguish between different categories of such unintentional killings as did the Mechilta. The correct explanation is that the person who was originally killed by the unintentional killer had been a deliberate murderer also. G'd could have caused some weight to fall upon such a murderer without involving the unintentional killer at all. He used the unintentional killer as His tool in order to "kill two birds with one stone." The unintentional killer who has now become G'd's tool i.e. ואנה לידו, is guilty of exile in the city of refuge only for the first time he killed unintentionally. Even if he had killed ten people as a result of his fall from the ladder, he would only be liable for exile for the original killing. The penalty of exile is related to the cause, not to the number of killings committed by the person. G'd will not arrange for this unintentional killer to become involved in a second killing in order to be exiled again. As a result of this consideration you...

והאלוקים אנה לידו, “and it was a result of divine will;” in other words, the person becomes guilty of death at the hands of heaven. Rashi on this verse understands it as referring to an inadvertent killing, which was the result of inadequate precautions being taken by the person who caused it. He interprets it as a demonstration of the verse: מרשעים יצא רשע, “wicked people will cause wicked acts.” What is meant is that if someone has committed a serious sin unobserved and intentionally, so that he could not be brought to trial, providence sees to it that he will have to atone for this by committing unintentional death of an apparently innocent person. The example quoted is that the “sinner” was ascending a ladder, a rung of which broke and caused him to hit someone standing nearby in his fall. On our verse, Rashi comments: “this refers to unintentional killing.” He interprets the verse from Samuel I 24,13, by providing an illustration. The person sitting under the ladder had once killed intentionally, but no witnesses were present who could testify against him in a Court that would condemn him to death. On the other hand, the person falling from the ladder had once killed unintentionally when there were no witnesses who would have forced him to take refuge in the city set aside for such situation. Now, through divine intervention, both had received their penalties, each appropriate to his sin. Alternately, the scenario should be as follows: the party who had previously committed deliberate murder, fell onto someone holding a knife in his hand at the time. If we would not explain the verse in this manner, the person who had been guilty of execution by the sword would not have died by the proper type of execution, i.e. the sword. The example quoted also teaches that a person cannot become guilty having to go to the city of refuge twice. The reason is that once you have killed someone if in the process you have killed someone also unintentionally, you are penalised only for the more serious crime. ושמתי לך מקום, “I set aside for you a special place;” this commandment would not become effective until the people took up residence in their homeland. It is a hint of the cities of refuge to be legislated and introduced still during Moses’ lifetime.

ואשר לא צדה, “but if he did not lay an ambush, etc.” The verse speaks of unintentional killing. The word צדה means there had not been a deliberate hunt to kill the person in question by his eventual killer, however, “G’d had intervened” causing this man to kill someone because he had already been guilty for committing another capital sin which had either not been detected or could not be prosecuted. If the killer had not already been guilty of a similar crime, the Torah would not have described the unintentional killing as “an act of G’d” rather than as an act of man. This is what Solomon was speaking of when he said (Proverbs 13,23) ויש נספה בלא משפט, “sometimes someone is destroyed for something which is not subject to justice capable of being meted out by a court.” The Talmud Makkot 10 already illustrated this with the well known parable of two men, one of whom killed intentionally whereas the other killed unintentionally. G’d had arranged that these people meet at the same place at the same time; the one who had been guilty of unintentional killing ascended a ladder and fell down killing the person standing underneath it who had already been guilty of intentional killing. The person falling off the ladder had to move to a city of refuge, one of the cities set aside for unintentional killers. The reason that the Torah uses the expression איש was to let us know that only adults have to be executed, not minors. For this reason the Torah wrote in one instance ואיש כי יכה כל נפש אדם (Leviticus 24,17) “an adult who kills any human being, etc.,” in order to make clear that the death penalty applies also to someone who killed a minor. The word איש also excludes aborted fetuses, and embryos born too early to be viable. ושמתי לך מקום, “I shall provide a place for you.” This means that even in the desert a special place will be set aside for such unintentional killers to find refuge from a potential avenger who is a blood relation of the victim. The “place” in question was the area in which the Levites had their tents (Makkot 12). I believe that the reason the Torah wrote the word לך, “for you,” something quite unusual, is to hint that Moses, a Levite, had himself been guilty of killing someone.

ואשר לא צדה, the word צדה is used here in the same sense as in Numbers 35,20 בצדיה, or in Samuel I 24,12 ואתה צודה את נפשי, “yet you are bent on taking my life.” The word describes lying in ambush in order to kill one’s victim, not necessarily running after him. אנה לידו, the Torah describes someone who had already been guilty of death but who could not be legally executed, now being killed inadvertently by someone else whom he did not even know. This is what we call מיתה בידי שמים, “death at the instigation of heaven.” ושמתי לך מקום, once you will have cities wherein to dwell. The reason the Torah spoke about this already at this time is because it had already legislated the prohibition of murder in the Ten Commandments as well as the need to honour one’s parents. This is why also penalties for violation of these commandments have to be legislated in this portion. The penalty for kidnapping is also spelled out here, seeing the Torah had prohibited stealing as part of the Ten Commandments. Our sages said that the “do not steal” in the Ten Commandments refers to kidnapping and is punishable by legal execution (Sanhedrin 86). We note that at this juncture the Torah discusses a number of crimes or sins punishable by death.

But if a man acts wickedly against his fellow to kill him treacherously, you shall take him from My altar to die.

וכי יזד AND IF A MAN ACT INTENTIONALLY — Why is this stated at all (since v. 13 expressly provides a place for the murderer only if he does not lie in wait)? Since it is said, (v. 12) “Whosoever smiteth a man [so that he die shall be put to death]”, I might infer that this is so even if the victim is a heathen, and that there it included even a physician who kills a person as a result of his treatment, and a court-officer who kills a man when inflicting on him the forty lashes, and a father who beats and thereby kills his son, and a teacher who chastises his pupil and thereby kills him, and one who kills in error (שוגג, i. e. one who intended to kill a certain person but missed the mark and killed another instead — נתכוין להרוג את זה והרג את זה)! Scripture therefore states here: “if a man acts intentionally (יזיד)” — but not in error (שוגג); “against his fellowman (רעהו)” — but not against a heathen; “to slay with guile (בערמה)” — thus excluding the court-officer, the physician, and one who chastises his son or his pupil for all these though acting intentionally do not do so with guile (cf. Mekhilta). מעם מזבחי תקחנו למות THOU SHALT TAKE HIM FROM MY ALTAR, THAT HE MAY DIE — even if he is a priest and stands at the altar intending to officiate thou shalt take him away that he die (cf. Mekhilta; Yoma 85a).

"And when a man acts presumptuously" — the reason for killing him is as if it were written "and he killed him with cunning," similar to: "when she defiles herself through harlotry" (כִּי תֵחֵל לִזְנוֹת, Lev. 21:9), which means: when she desecrates herself through harlotry, therefore her father she desecrates (מְחַלֶּלֶת). For it is known that the word חִלּוּל (desecration) and also תְּחִלָּה (beginning) are both from the doubled-root verbs, and they have two different meanings — therefore Scripture needed to distinguish between them. It says: כִּי תֵחֵל לִזְנוֹת — from the sense of תְּחִלָּה (beginning) it would be תָחֵל, as in "you shall begin to count" (תָחֵל לִסְפֹּר, Deut. 16:9). — "From My altar" — this is the opposite of the first verse, where it is written "I will make for you a place" — meaning the cities of refuge. But one who murders deliberately shall be put to death, even if he flees to My altar, as Joab did. Our early authorities said: even a priest who wishes to perform the service of My altar shall be put to death.

מעם מזבחי, even though at that time when no cities of refuge existed yet the entire camp of the Levites, and not only the immediate area of the altar served as such a place of refuge. תקחנו למות, as in Jeremiah 7,11 “do you consider My house to be a den of thieves?

וכי יזיד איש.. להרגו בערמה, If someone plans devious murder, etc. Mechilta concentrates on the word למות at the end of the verse and understands it as excluding "bringing him to trial, inflicting corporal punishment, or exile." This is the reason that Yoav (David's general) who had taken refuge in the Temple holding on to the altar was dragged away and executed. While it is true that Yoav was executed, this was because he was rebellious and not because he had murdered Avner or Amassa (compare Sanhedrin 49). He had fled before he could be brought to trial. The Talmud in Makkot 12 claims that Yoav's error in thinking that the altar could save his life was that at that time the altar was still a temporary structure, Solomon's Temple not having been built yet. I have noted that Maimonides writes in chapter 5,12-14 of his Hilchot Rotzeach that the altar serves as a refuge for unintentional killers as far as protection against an avenger who is a member of the victim's family is concerned. It does not act as an alternative to such a killer having to go into exile. Clearly, Maimonides had not seen the Baraitha which we quoted above according to which the word למות excludes exile, etc. The Baraitha's whole point is that if someone tries to save himself in the Holy Temple by holding on to the altar he can be dragged out only in order to be executed and not in order to be confined in a city of refuge. While it is true that one could offer a forced explanation that the words in the Baraitha ולא לגלות mean that that if someone is guilty of confinement in the city of refuge the family's avenger has no right to kill such a person, this is extremely forced seeing it contains no new element. We know this already. Besides, the words in the Baraitha which appear immediately before this comment about לא לגלות contradict such an explanation. The Baraitha had said: "not to have corporal punishment administered to him nor to be brought to trial." I have an even greater difficulty with the words of the author of Mishneh Lamelech who wonders why Maimonides makes a distinction between intentional and unintentional killers seeking refuge at the altar, whereas he makes no such difference at all. The latter statement is incomprehensible even if we did not have a Baraitha at all. We have no authority to rule that the altar fails to act as refuge except in a situation specifically excluded by the Torah.

מעם מזבחי, even when the murderer has taken refuge near My altar; all the more so when he escaped to one of these cities of refuge.

וכי יזיד איש על רעהו להרגו, “and if a man shall act intentionally against his fellow to kill him,” the meaning of the word להרגו, is והרגו, i.e. “he has carried out his intention and killed the person he intended to kill.” The Torah had to add the words בערמה, “with guile,” in connection with the legislation involving murder and its penalty as nearly every murderer makes an elaborate attempt to conceal the fact that he killed intentionally. In other words, a murder almost by definition, engages in ערמה, guile, deceit. Not only that, his sin is one that was inspired by the original serpent who wanted to make man guilty of death. The Torah had described the principal characteristic of that serpent as being that it was the “most ערום,” the most crafty of all the living beasts (Genesis 3,1). Murder then is a sin directly attributable to the influence of the serpent. According to ancient sources, the serpent had mated with Chavah and its seed had produced Kayin, the first murderer. (see author’s commentary on Genesis 5,2; Ed.) This is also why the sages (Sotah 21) call anyone who engages in sin after having misrepresented his intentions a רשע רע, “an evil sinner,” (as if a sinner were not evil by definition already). The attribute רע which the sages appended to the description רשע is based on Isaiah 3,11 אוי לרשע רע, “woe to the wicked sinner.” Such a sinner derives his strength from the celestial sphere Mars, which itself is described as רע, evil, as wars and murder usually take place under its aegis. (I have explained this in detail on Exodus 10,10). The prophet Jeremiah 1,14, when saying that “disaster shall break loose from the north upon all the inhabitants of earth,” also refers to the planet Mars. This planet was also referred to as רעה, by Pharaoh in Exodus 10,10. מעם מזבחי תקחנו, “from My altar shall you take him (to die).” The Torah implies that there is no need to tell us that a city of refuge does not offer protection to an intentional killer, and that he will have to be surrendered to the court to stand trial; here the Torah adds that even if the murderer sought refuge in sacred grounds, clinging to the altar, this is no protection for him and the authorities are instructed to remove him from there to stand trial. We find proof of this having been done in Kings I 2,28 where it is described that Yoav, David’s commander-in-chief who had sided with Adoniah in the latter’s abortive attempt to become king instead of Solomon, took refuge in the Tabernacle and held on to the corners of the altar to escape being executed for treason. Solomon commanded Benayahu to extradite him from there. When Yoav refused to leave the holy precincts, Benayahu executed him inside the sacred grounds, carrying out the instructions in our verse. The message contained in the legislation is that even someone who thinks he can call on G’d to save him from prosecution by a human tribunal does so in vain if the sin he was guilty of was murder, (as David had explained to Solomon about Yoav prior to his death). Display of “mercy or pity” in such instances is tantamount to displaying cruelty as failure to execute a murderer deprives him of atonement in this life and he will face the whole burden of his sin after death when he comes up to be tried by a celestial tribunal. Rashi explains the words מעם מזבחי תקחנו למות, as meaning that even if the murderer happens to be a priest or a Levite, whose domain is the proximity of the altar, he will be taken to stand trial and will be executed if found guilty. This is based on Mechilta Nezikin section 4. The Talmud in Makkot 12 already pointed out that Yoav, who held on to the corners of the altar in order to save himself from extradition, was executed only because he thought that even the corners of the altar not only its roof were an area of refuge from prosecution by human tribunal. He had misinterpreted the fact that the Torah wrote מעם מזבחי, “from beside My altar,” instead of מעל מזבחי, “from on top of My altar,” to include any part of the altar. Alternatively, he thought that the Torah referred only to murderers who had committed murder in the presence of witnesses and after legally valid warning and who had thus become subject to trial by a human court. Seeing that he did not commit his crime under such conditions he thought he could throw himself on G’d’s mercy instead. The fact is that the words in our verse are intended to tell us that whereas under the aforementioned circumstances the court cannot convict and execute, Yoav’s guilt was also insurrection against the king. This is a crime which does not need warning and witnesses of a certain type in order for the king to execute the offender. Yoav erred thinking that when there were no witnesses or warning the altar could protect him from the king’s vengeance. One can also interpret "from my altar he should be taken" as referring to the witness: Even if the witness is currently occupied with offering a sacrifice on the altar, he should be summoned immediately to bear testimony. To sum up: our verse teaches that if the objective of retribution is not so much vengeance as the removal of wicked sinners from the face of the earth, G’d waives the sanctity of the altar in order to enable justice to be done to such people.

Whoever strikes his father or his mother shall surely be put to death.

ומכה אביו ואמו AND HE THAT SMITETH HIS FATHER OR HIS MOTHER [SHALL SURELY BE PUT TO DEATH] — Because Scripture has taught us that he who inflicts a wound upon his fellow-man is liable for damages (cf. Rashi on Exodus 21:24) but is not subject to death, it was compelled to state that he who inflicts a wound on his father or his mother is subject to the death penalty (Mekhilta). He is, however, not punishable with death except for a blow which causes a wound (Sanhedrin 85b). אביו ואמו means either his father or his mother (Mekhilta). מות יומת SHALL BE PUT TO DEATH — by strangulation (Mekhilta).

AND HE THAT SMITETH HIS FATHER, OR HIS MOTHER, SHALL SURELY BE PUT TO DEATH. Our Sages have already taught that his death is by strangulation. This is why He placed next to it, And he that stealeth a man, and selleth him, for he too is punished by the same death. He separated it from the later verse, And he that curseth his father or his mother, because his death is by stoning, as it is said concerning him, he hath cursed his father or his mother; his blood shall be upon him, and whenever such an expression [his blood be upon him] is used about someone, his death is by stoning, this being derived from that which is written, They shall stone them with stones; their blood shall be upon them. The reason why He was more severe as to the manner of death of the one who curses his mother or father than as to the manner of death of one who smites them, is because the sin of cursing is more common, for when the fool gets angry he frets himself and curses by his king and father and mother the whole day, and a crime that is frequently committed needs a greater punishment [than one rarely committed]. Or it may be that cursing involves a greater sin, because he uses the Name of G-d, and therefore he has to be punished for his sin against his father and mother, and also for taking G-d’s Name in transgression and sin. Now the Gaon Rav Saadia said, that the reason why He placed the matter of stealing a human being between that of smiting one’s parents and cursing them, is because most people are kidnapped when they are young, and they grow up in a strange place unaware of who their parents are, and thus they may come to smite them or to curse them [not knowing that they are their parents]; therefore it is fitting that the thief too be punished by death as they are, since he is responsible for the punishment that is visited upon the child [who smites or curses either of his parents, and for that reason the verse dealing with the thief’s punishment is mentioned between those dealing with smiting one’s parents and cursing them].

"And one who strikes" — Since it mentioned "one who strikes a man and he dies" (v. 12), it was necessary to explain that there is striking without the death of the one struck — yet it carries the death penalty — such as striking one's father; while striking a worker is for another's benefit. And because of the honor of parents, it was necessary to state that even if one does not strike them but only curses them, he is put to death.

ומכה אביו ואמו, “and if someone strikes either his father or his mother;” why did this verse have to be written? [If killing someone not related to him by blood results in execution, is it not natural that he will not face a lesser penalty for killing his father or his mother? Seeing that theTorah had written: עין תחת עין, “an eye for an eye,” the Torah had to let us know that this law does not apply when the eye of one’s father had been gouged out by his son, but that he faces a more severe penalty in that instance. The Talmud employs an exegetical tool called heckesh, i.e. [according to some scholars, the 19th of these tools enumerated in the 32 such tools listed by Rabbi Eliezer son of Rabbi Yossi hag’lili. Ed.] In order to have halachic validity, this instrument being used in a particular instance must have been a well known tradition, called in the language of our sages: halachah miMoshe mi Sinai, a ruling as binding as if it had been given to Moses at Mount Sinai. Ed.] In our case it would work as follows: just as someone if he has struck his neighbour’s animal is not culpable for such a deed unless the animal sustained a visible wound, so if one strikes one’s father or mother he becomes guilty of the death penalty only if he had actually wounded his father or mother by such a physical blow. The reason it appears in our context in the Torah is that the penalty is parallel to that for murder, something discussed in our paragraph. ומכה אביו ואמו מות יומת, “and someone striking his father or mother must be put to death.” The peculiarity here is that the Torah informed us of the penalty for violating the commandment before having spelled out the commandment not to strike anyone. Actually, the commandment that the penalty for striking someone and his being subject to 39 lashes has been established, and the Torah had added that this number of lashes, (Deuteronomy 25,3) must not be exceeded by the person carrying it out as agent of the court. Actually, we could have derived that from logic also, i.e. “if the agent of the court who carries out striking an individual is commanded not to exceed his authority, how much more so does such a rule apply to someone who had no authority to strike anyone!” (Mechilta, Mishpatim chapter 5)

ומכה אביו ואמו מות יומת, “If someone strikes his father or his mother he shall be executed.” The blow must be such that it causes an injury involving bleeding or a bruise (Mechilta Nezikin section 5). The situation described here is similar to Kings I 20,37: “he struck him and wounded him.” When the Torah writes אביו ואמו, the meaning is not that in order to become guilty of the penalty prescribed the son or daughter has to strike both father and mother. The letter ו here as well as in many other instance means או, “or.” A striking example of the letter ו meaning “or” instead of “and,” is Deut. 17,3 ויעבוד אלוהים אחרים וישתחו להם ולשמש או לירח או לכל צבא השמים, “and he will go and serve gods of others and prostitute himself to them, or to the sun or the moon or to any of the host of heaven;” clearly the letter ו in the word וישתחו cannot mean that he must perform all of these acts of idol worship in order to become culpable. The Torah lists a number of alternatives any of which result in his becoming guilty of death by stoning. In our verse the death penalty for someone striking either parent is death by strangulation.

ומכה אביו, our sages say that the penalty prescribed applies only if an injury results from hitting one’s parents (Sanhedrin 84).

ומכה אביו ואמו, “and if someone strikes his father or his mother;” the Torah here spells out the penalty, i.e. legal execution, without even having informed us that this is forbidden, an unusual construction. This question is raised by the Talmud, tractate Sanhedrin, folio 54. We have a rule that no court can convict a sinner except where the Torah has warned us of the sin in question being a sin. Granted that in the case of someone cursing a crowned head or even a deaf person who cannot even hear the curse, is forbidden, i.e. both a low-ranking person and a high ranking person must not be cursed, it is obvious that the same rule applies to social strata in between, and therefore each strata does not need to be written separately; compare (Exodus 22,7 and Leviticus 19,7) but where did the Torah spell out the prohibition to strike a human being without the penalty being spelled out simultaneously? We must fall back on Deuteronomy 25,3, where the Torah warns the court’s clerk not to apply more than the permitted number of lashes to a person convicted of these. If in the case where the physical punishment is mandatory even a minutely excessive force is specifically forbidden, it is clear that striking someone without the consent or even instruction by the court is forbidden, how much more so is striking someone without such legal cover forbidden! In fact, concerning the subject of physical punishment, the halachah is according to the view of Rabbi Meir, who said that if someone is guilty of two penalties, both physical punishment and a financial penalty, (and we do not apply both for the same sin) the physical punishment is not administered. (Talmud, tractate Ketuvot, folio 32) The only exception is if the financial penalty amounts to less that the lowest coin in circulation at the time in the country. In this respect, the halachah does not treat sins committed against father or mother differently from offences committed against someone else. If you were to ask that seeing the verse deals with the prohibition of striking one’s father, a sin which carries the death penalty, how could anyone have even imagined that the penalty would be 39 lashes, seeing that we have a rule that physical lashes are never an option for committing such a sin, (compare Talmud tractate Makkot folio 13), the answer is that we have two different expressions in the verse dealing with that subject in Deuteronomy 25,3. It says both: ארבעים יכנו לא יוסיף,, as well as פן יוסיף להכותו על אלה מכה רבה, “forty lashes he may give him, he must nor exceed this,” and “lest he should exceed above by inflicting a severe wound, etc.;” you may also argue that seeing the subject in our chapter deals with inflicting wounds, how could the penalty be one of execution by a court? How would I know that if the blow administered did not result in a visible wound that it would be punishable altogether? Furthermore, when the Torah speaks about cursing father and mother (Leviticus 20,9) execution is the penalty, how could it occur to anyone to think that the penalty would be 39 lashes? We would have to look at Leviticus 24,21 where the Torah decrees the death penalty for striking a human being, any human being, i.e. ומכה אדם יומת, “if he strikes a human being she shall be executed!” On that verse Rashi felt compelled to explain that the human being meant in that verse is one’s father, and that the reason is to contrast and to compare the penalty for striking animals and striking one’s father, where the former is punishable only by financial compensation to the owner of that animal. We could conclude that just as when said animal did not die from its wounds only a financial penalty is imposed, the same would be true for striking human being who does not die a result. The Torah therefore wrote the word יומת, “he shall be executed,” to show that the verse speaks of a human being who is the father of the man who struck him.(Compare Rashi on that verse.) It is not possible to say that the Torah there speaks of someone who had struck one’s father after he was dead, but the verse speaks of living animals and a living father being the victim. What is the difference between יומת and מות יומת, the usual term for legal execution? The former refers to a financial penalty, just as in Exodus 21,29, where the owner is not executed, but the Torah uses this word to show that he deserves to be executed. We know this as previously the Torah had written: כן ינתן בו, “thus it shall be rendered to him.” (verse 20) This was a clear reference to a financial penalty. In light of the above, we must understand the word יומת in Leviticus 20,9 as having been meant literally and applying to someone who struck his father or mother.

Whoever kidnaps a person from among the children of Israel and sells him, and he is found in his hand, shall surely be put to death.

וגנב איש ומכרו AND HE THAT STEALETH A MAN, AND SELLETH HIM, [AND HE BE PREVIOUSLY FOUND IN HIS HAND, HE SHALL SURELY BE PUT TO DEATH] — Why is this statement made (how does the particular form of words used here tell us some point of law which is not contained in another text bearing upon the same subject)? Since it is said, (Deuteronomy 24:7) “If a man be found stealing any of his brethren … [then that thief shall die]”, I might say that I have here only the law that a man who stole a person is punishable with death. Whence, however, do I know that this is also the case if a woman or a person whose sex is not distinguishable or a hermaphrodite (טומטום ואנדרונינוס) has stolen a person? Scripture therefore states here: “Whosoever stealeth a man and selleth him”. — And again, since Scripture states here: “He that stealeth a man [shall be put to death]”, I might say that I have here only the law that if one steals a man he is punishable with death. Whence do I know that this is also the case if he has stolen a woman? Therefore Scripture states, (Deuteronomy 24:7) “[If a man be found] stealing any person [he shall be put to death]”. Consequently both verses are necessary: what the one omits the other tells us (Mekhilta; Sanhedrin 85b). ונמצא בידו implies that witnesses have seen him stealing and also saw him selling the person, and that he has been found in his possession before he had sold him (Mekhilta). מות יומת HE SHALL SURELY BE PUT TO DEATH — by strangulation. Wherever the death-penalty is mentioned in Scripture without being precisely defined strangulation is intended (Mekhilta; Sanhedrin 84b). [It should be noted that Scripture interrupted the context by writing “Whosoever stealeth etc.” between the passages, “He that smiteth his father etc.” and “He that curseth his father etc.”, which passages ought on account of their contents to follow one after the other. I think that this gave rise to the difference of opinion found in Sanhedrin 85a where one Rabbi holds that we must put “smiting” on an equality with “cursing”, in spite of the text being interrupted by the verse וגונב, which, however, is placed between them only to teach that in some respects “smiting” and “cursing” have not the same law, — that after the death of the parents “cursing” them is punishable whilst “smiting” them is not; whilst another bolds that since the two verses have been disconnected “smiting” can by no means be put on an equality with, and have the same legal consequenses as, “cursing” (cf. Sanhedrin 85b)].

AND HE THAT STEALETH A MAN, AND SELLETH HIM, AND HE BE FOUND IN HIS HAND — “previously, before the sale.” This is Rashi’s language. But I have not understood it. If Rashi means that witnesses must have seen him [the stolen person] in the thief’s possession before he had sold him — could it even enter your mind that the thief be subject to the death penalty without witnesses having seen him stealing and also seeing him selling! It would therefore have been sufficient if Scripture were to say: “and he that stealeth a man and selleth him”. Further, his being found in the thief’s possession is no real proof that he stole him! Rather, this verse is the source for that which we have been taught in a Mishnah: “He that steals a person is not liable to the punishment unless he brings him into his own possession,” and in a Beraitha the Rabbis have said: “If he stole him but did not sell him, or if he sold him but he is still in his [the thief’s], possession, he is free [from the death penalty].” The meaning of this is to teach us that the law applying to the thief of a human being is [in one respect] similar to that of thieves of other, i.e., monetary, matters; namely, that if a thief killed or sold [an ox or a sheep] within the domain of the owner, he is free [from paying five oxen for an ox and four sheeps for a sheep], but if he lifted them up [thereby acquiring possession of them], or removed them from the domain of the owner, he is liable to pay. Similarly, this thief of a human being must first have brought the stolen person into his own domain [in order to be liable to death]. Likewise if he lifted the lad upon his shoulder, and sold him to another person, he is liable to the death penalty, because this too is called if he be found in his hand, since it is not logical that a man’s ground should have a greater power of taking possession of a thing for the owner, than his own hand has. In a similar way, that which the Rabbis said [in the Beraitha mentioned above]: “or if he sold him but he is still in his [the thief’s] possession etc.,” means that the buyer did not remove him at all from the thief’s domain, even though he paid him the money, and since he did not remove him from there, the thief is free [from the death penalty]. Now I do not know whether this is to say that [in order to make the thief of a human being liable to the death penalty] the buyer must perform a formal act of acquisition, as is the law in other transactions, that the buyer does not take ownership of the article until he draws it from the domain of the seller into a simta, [an alley adjoining an open place] or until he lifts it [even within the domain of the seller] — or it may be that it is a special Scriptural decree in the case of the sale of a stolen human being, that even if the sale has been finalized between them, and the buyer has taken ownership from the seller by lifting him or by drawing him along in ground which belongs to both of them, [in which case usually the...

"And one who kidnaps" — The Gaon asked: why does this verse come between "one who strikes his father" and "one who curses his father"? He answered that Scripture speaks only of what is common, for those who were kidnapped were minors who grew up in a foreign land and did not know their parents — and it is possible they would strike them or curse them. And the punishment falls on the kidnapper: "if he is found in his possession" — before he sells him, in the marketplace — "he shall be put to death."

וגונב איש, “If one kidnaps another person, etc.” Why was this verse necessary? (it has been repeated in detail in Deuteronomy 24,7) If we had only had the verse in Deuteronomy, we would have thought that the penalty would apply only if we had witnesses to the kidnapping. We would not have known that witnesses to both the kidnapping and the subsequent selling of the victim were required in order for the death penalty to apply. Another thing these two laws have in common is that the death penalty is to be carried out by strangulation. ונמצא בידו, “and he has been found in his possession;” another way of saying that the crime had been carried out in the presence of witnesses, or that there was so much circumstantial evidence as if it had been witnessed by living witnesses. [One cannot help thinking of coloured photographic evidence even showing the parties in motion. Ed.] מות יומת, “the kidnapper is to be executed.” The reason is that having sold his victim it is almost certain that the victim will be so abused that he will die prematurely. As to the question where was the prohibition written before the penalty was recorded in the Torah, the reader is directed to the eight of the Ten Commandments in Exodus 20,13: לא תגנוב, “Do not steal!”

וגונב איש ומכרו, “If someone kidnaps a man (person) and sells him, etc.” Rabbi Saadyah Gaon explains the reason this verse has been inserted between the one dealing with striking father or mother, and the one dealing with cursing father or mother. He writes that seeing most people who have been kidnapped and sold into slavery were minors at the time they were snatched, if or when such a person returns to his home town after many years he does not recognise his parents. He may therefore have occasion to strike or curse someone and will do so not knowing that the person whom they strike or curse is actually his father or mother. The cause of such a sin occurring is the kidnapper. This makes the kidnapper morally guilty of the crime committed by his victim and, at least theoretically, of the death penalty. Nachmanides writes on this subject that the reason the Torah wrote both these verses together is that both the kidnapper and the person striking father or mother is subject to the identical death penalty חנק, death by strangulation. Someone who curses father or mother (verse 17) however, is subject to death by stoning, as we know from Leviticus 20,9 כי איש איש אשר יקלל את אביו ואת אמו מות יומת, אביו ואמו קלל דמיו בו, “any man who will curse his father or his mother shall be executed; his father or his mother he has cursed, his blood is upon him.“ Wherever the words דמיו בו appear the death penalty referred to is stoning. The verse from which we learn this is Leviticus 20,27 באבן ירגמו אתם דמיהם בם, “they shall pelt them with stones, their blood is upon themselves.” Stoning is a more severe death penalty than death by strangulation. One of the reasons may be that the sin of cursing parents is more widespread than the sin of striking them; the Torah therefore provided for a penalty which is more likely to restrain a person from committing this offense. Or, the fact that cursing anybody involves using (abusing) the name of G’d in the process, cursing father or mother makes it a double offense. The Torah therefore threatened a more severe death penalty for violators. The reason the Torah inserted this prohibition here, in between the prohibitions of hitting and cursing one's parents, is to magnify the sin and give it the level of severity of those transgressions. In the Ten Commandments the prohibition to kidnap has also been inserted between the sin of adultery and that of false testimony for similar reasons. Had the Torah mentioned that offense only at the end we would have thought that this is a relatively less serious offense than striking father or mother or cursing them. On the other hand, the Torah was unable to position the law against kidnapping earlier as it had already commenced with the penalties about murder in verse 12. This had to be followed by the law against striking father or mother. The severity of kidnapping is best demonstrated in that the brothers who had kidnapped Joseph had not been punished until more than 1000 years later when the “Ten Martyrs” died at the hands of the Romans in order to finally expiate for that sin. I have already explained the reason that the Torah repeats the words מות תמות in order to hint at death in the terrestrial as well as the celestial regions (see commentary on Gen. 37:28, 44:17). ונמצא בידו, “while he was in his power.” The word נמצא must be contrasted with מצוי. The former is a person over whom the kidnapper had no legal authority; the latter is someone such as a teacher who does have a certain legal authority over the victim. Such a kidnapper is not subject to the death penalty (Sanhedrin 86).

וגונב איש ומכרו, “and he who kidnaps a person and sells him, etc.” The Torah inserts this verse (subject) between the verse dealing with murder, and the one dealing with physically assaulting one’s parents, or cursing them. Some commentators feel that the point of the sequence is to list two crimes both of which are punishable by strangulation of the sinner together. Cursing parents, on the other hand, is punishable by the guilty party being stoned to death, a more painful and demeaning manner of execution. This commentary does not seem very convincing to me, as if that were the reason the Torah adopted this sequence, the verse dealing with kidnapping should have preceded that of describing parents being assaulted. In that way the verses dealing with improper behaviour against parents could have remained part of the same sequence, and the two crimes for which the punishment is strangulation could also have been written sequentially. Rabbeinu Saadyah gaon explains that seeing most victims of kidnapping are small children, who as a result of being sold, will be raised far from their parents’ homes, not even able to recognize their parents, the chances that at sometime during their lives they will curse or physically assault a parent, not even being aware that the person they cursed was a parent, the kidnapper deserves the penalty which otherwise would be applicable to the victim of the kidnapping had he done what he did deliberately. This is why the Torah chose this apparently obscure sequence. The penalty for a son who curses his father without laying a hand on him is more severe than the penalty for physically assaulting one’s parent, because this offense is more commonplace than the one of actually raising a hand against a parent. In order to act as a deterrent, the Torah imposed a harsher penalty. It is also possible that the reason why the penalty for cursing one’s parents is harsher than for striking them, is that cursing involves using the holy name of the Lord for such a nefarious crime. [Halachically, “cursing” means to curse someone in the name of G’d, to try and call down G’d’s anger against the person one curses. Ed.] He who curses parents has committed two major sins simultaneously. ומכרו ונמצא בידו, “and he sold him but the kidnapper is apprehended while still having the kidnapped person under his control.” According to Rashi the victim is found in the kidnapper’s possession before the sale. Nachmanides writes that if this were so the Torah would not have needed to bother to write the line ונמצא בידו, “the victim was still in the kidnapper’s control.” Seeing that we obviously have witnesses to the crime, the kidnapper had both kidnapped and sold the person concerned, he clearly was under his control. He therefore understands the meaning of the words ונמצא בידו to mean that the kidnapper has brought the kidnapped person into his private domain to mean that until the kidnapper had brought his victim into his private domain he is not liable to the penalty the Torah decrees. The rule is parallel to someone who has stolen and then slaughtered or sold the animal in question. His penalty of making 4 or 5 fold restitution is also applicable only if the stolen animal had first been transferred to the private domain of the thief.

וגונב איש, but if someone kidnaps a person, etc.” the reason why this scenario is written between the verses where striking a father a or cursing him is written, is because the penalty for striking a father or kidnapping a person is death by strangulation, while the penalty for cursing one’s father is by stoning (more severe). In Leviticus 20,9, the penalty for cursing is described both as מות יומת, “he is sure to be executed,” plus the additional words: דמיו בו, “his blood(guilt) is upon him.” Although we might have thought that cursing one’s parent should carry a lighter sentence than physically assaulting him, seeing it does not involve an act, whereas striking includes an act of violence, the Torah decreed a more severe penalty for the cursing of one’s parent, i.e. death by stoning. According to the Talmud in tractate Sanhedrin, folio 49, the reason why a severe type of death penalty is applied for cursing one’s parents, is that the Torah compares the parents as deserving a similar degree of honour as that shown to G–d, seeing that the parents brought you into this world. Cursing G–d is punishable by stoning as we know from the blasphemer in Leviticus 24,14. Seeing that it impossible to strike G–d, any comparison with striking a parent is inappropriate. Hence the death penalty for that sin is chenek, strangulation. Furthermore, when someone was guilty of cursing his parents after they had died he is still guilty of the same sin, whereas if the same person had struck his father after he had died the death penalty does not apply, as it was part of the penalties listed for causing injury (Compare Mechilta Mishpatim, section 5.). It is impossible to inflict an injury upon someone who is already dead. Our author asks that if one cannot inflict injury after death and therefore the death penalty by stoning is not applied, why is the same not true of someone who cursed G–d, seeing it is impossible to harm Him in any way? Perhaps the fact that the subject of cursing G–d, and the penalty for this appears next to the subject of the blasphemer in Leviticus chapter 24, makes my question irrelevant.

Whoever curses his father or his mother shall surely be put to death.

ומקלל אביו ואמו WHOSOEVER CURSETH HIS FATHER OR HIS MOTHER [SHALL SURELY BE PUT TO DEATH] — Why is this stated in this particular form? Since Scripture says, (Leviticus 20:9) “For every man who execrateth his father [or his mother shall surely be put to death]” I might say that I have here only the law that a man who curseth his father or his mother is punishable with death. Whence do I know that this is also the case if a woman curseth her father or her mother? Scripture therefore states here, “Whosoever curseth father or mother” — whosoever generally — intimating that it applies to both man and woman (Mekhilta). But if this be so why is it said, (Leviticus 20:9). “For every man who execrateth etc.”? To exclude a minor. מות יומת SHALL SURELY BE PUT TO DEATH — by stoning. And the rule is that wherever the term “his blood is upon him “is used in connection with the death penalty, “execution by stoning” is meant. The following in the passage from which this is evident (בנין אב): (Leviticus 20:27) “they shall overwhelm them with stones: their blood is upon them” — and as regards one who curses father or mother (Leviticus 20:9), Scripture indeed uses the words דמיו בו (Mekhilta; Sanhedrin 66a).

"And one who curses" — We find cursing with the invocation of the Name, as in "he cursed them in the name of Hashem" (II Kings 2:24); also without the invocation of the Name.

ומקלל אביו, “and if someone curses his father;” from what is written here we only know that it is forbidden to curse one’s father while he is alive; how do we know that the same law applies to people cursing their fathers posthumously? The word: ומקלל formulated in the present tense, in the widest possible formulation includes cursing him anywhere anytime. Where is the commandment not to curse one’s father stated explicitly independent of the punishment in store for those who violate it? The reader is directed to Exodus 22,27: אלוהים לא תקלל ונשיא בעמך לא תאור, “Do not curse a judge and do not curse an elected political leader within your people.” לא תקלל חרש, “do not curse a deaf person!” The common denominator in these three prohibitions is that they are part of your people, and that your father and mother are similarly not only your relatives and have begotten you, but they are part of your nation, a holy nation. The reason why the Torah interrupts this sequence with verse 16, which deals with kidnapping, is that most people who are kidnapped are minors, who were unable to defend themselves against their abductor. As a result of having been kidnapped and sold to a foreign nation they will grow up in a country where they do not even know their parents, and when they get involved in an argument they will likely curse their fate and the father who had not protected them. Therefore this insertion is not a deviation from the theme the Torah deals with here. Verses 16 17 18 have a common denominator, as the Torah hints that in practice the occurrence of these sins are interrelated through the negative experiences in life by the parties who become guilty of them. [We must never lose sight of the fact that the Torah does not address itself to wicked people, as this would be a waste of time. What wicked person would take any notice of it? Ed.] What the Torah did here was listing sins which originate in quarrels between people some of which result in violent action, others in violent language. The honour due to father and mother is based on the honour due to the Creator himself, seeing that father and mother represent two thirds of begetting each one of us, G-d being the remaining third, who had helped father and mother to produce progeny. Therefore, cursing parents or cursing G-d are part of the same phenomenon, the result of frustration of the guilty party. Moreover, in the case of G-d releasing one’s anger by striking out physically is obviously impossible. Therefore all three are treated in a similar manner when it comes to how such release of one’s anger is treated by the Torah. Some commentators approach our whole paragraph as reflecting what our sages call it “not only this but also this.” For example: not only a person who has been so angry that in striking his fellow he has actually killed him, deserves to lose his life as a result of such lack of restraint, but even people who killed without intention actually deserve the same fate seeing that they had been criminally negligent, but the Torah stops short of this by protecting their lives if they succeeded to reach a city of refuge before an angry relative had a chance to avenge his relative’s needless death. This approach is supported by the Torah stating that if such a killer had acted intentionally, and had sought immunity next to the altar, [a symbol for a location where violence is absolutely forbidden, Ed] by taking refuge in the precincts of the Temple, this will not protect him against being brought to court by force and tried. Having stated this, the Torah extends this to people who in their anger only struck a parent also deserve the death penalty. If their act leaves a mark, injury, on the body of either parent they will be treated as having committed a capital offense. Finally, even if the son or daughter did not raise their hands against either parent and cursed them instead, they are also dealt with as having hurt them bodily.

And when men quarrel and one strikes his fellow with a stone or with a fist, and he does not die but falls bedridden —

וכי יריבן אנשים AND IF MEN QUARREL — Why is this (vv. 18, 19) stated in this particular form? Since Scripture states, (v. 24) “Eye for eye”, we learn from this only that compensation for the loss of limbs has to be paid, but we cannot infer from it that indemnity for loss of time (during which the injured has been disabled from work) and cost of medical treatment have also to be paid; consequently this section (vv. 18 and 19) is said (Mekhilta). ונפל למשכב BUT KEEPETH HIS BED — The meaning is as the Targum gives it: ויפל לבוטלן “and he falls into inactivity”, i. e. he falls into an illness that prevents him from working.

WITH A STONE OR ‘B’EGROF’ (WITH HIS FIST). Judging from certain expressions of the Rabbis, egrof is the hand closed tightly, with the fingers gathered into the palm for the purpose of striking someone with it. Thus they speak of ba’alei egrofin [literally: “men of fists,” or men of power]; “egrofo (the fist) of Ben Abtiach.” Similarly ‘b’egrof’ of wickedness means the hand of wickedness that strikes. Scripture thus mentioned two kinds of hitting — the hard one, with a stone, and the lighter one, with the fist, which in most cases does not cause death — in order to declare that in both cases an estimate [of the power of the stone or the fist with which he struck him] is needed, and the assailant is meanwhile imprisoned. If the assailed person dies, such as where he struck him a mortal blow, he is a murderer; he shall surely be put to death, but if he does not die, the assailant has to pay him for the loss of his labor and for the cost of the healing. In the Mechilta [we find the following text]: “Rabbi Nathan says: He has likened the stone to the fist and the fist to the stone. Just as the stone can cause death, so also the blow of the fist must be such that it is capable of causing death. And just as the fist is something that can be identified [and measured for the power of its blow], so also the stone must be such as can be identified. But if the stone with which he struck him became mixed up with other stones, the assailant is free.” This means if the stone became mixed up with other stones, they [e.i., the judges] estimate the lightest one and if it is incapable of causing death, they free the assailant. Other scholars have said that the word egrof means “a clod of earth,” the term being derived from the expression: the grains shrivel under ‘megr’fotheihem’ (their clods of earth), and the letter alef [in the word egrof is redundant], as is the alef in the word ezro’a [“arm,” where the word is really zro’a]. And this is the opinion of Onkelos who translated b’egrof — b’churmeiza (a piece of white stone or glazed tile). He mentioned these things also in order to tell us that the assailant who hits him with a clod of earth is also liable to be put to death, if he struck him on a sensitive spot where it is capable of causing death. This is to distinguish the law of the sword from the stone and egrof, for no estimate [of a sword or weapon] needs to be taken [since even a minute piece of metal — such as a needle — can also cause death], as the Sages have mentioned.

"And when men quarrel" — The Gaon said: "with a fist" (בְּאֶגְרֹף) — like בַּעֲלֵי אֶגְרוֹפִין (Sanhedrin 49a), something strong and hard. R. Marinus said the alef is appended, as in the alef of אֶזְרוֹעִי (Job 31:22), from the root גָּרַף (Judg. 5:21) — something swept up by the hand; and so too in Arabic.

וכי יריבון אנשים, And if men quarrel (fight physically), etc. Why did the Torah have to add the words: "and he does not die?" Surely any reader would have concluded that the situation described is one where the victim did not die! The intent of the Torah is to inform us that payments of compensation such as loss of income, medical expenses, etc., are all applicable only if the victim does not die as a result of this fight. This is the reason the Torah only mentions compensation for loss of income after it had described the victim as having recovered sufficiently so that he could get about without help. I am not sure that if the victim had been expected to die but recovered instead whether this is to be considered an act of G'd (miracle) or not. We have learned in Chulin 42 that an animal which suffers from certain categories of injuries dies within 12 months. In the event it did not die within this period we consider this as something supernatural, and we do not allow such occurrences to change the status of the animal. Similarly in our case. Do we say that the victim's recovery was miraculous and he therefore does not qualify for the various compensations listed in the Torah just as he would not have qualified for such payments if he had died? Or do we consider the fact that he has recovered as the only criterion in determining the compensation due him? According to Maimonides Hilchot Rotzeach chapter 4,3 anyone who did not die is entitled to compensation even if his recovery was a miracle, medically speaking. Subsequently I found the following statement in the Mechilta. "If he does not die but becomes bed-ridden; if, however, the aggressor inflicted the kind of injury which normally results in death, the attacker is free of the obligation to pay compensation." It appears that the author of the Mechilta makes the payment of compensation dependent exclusively on what the attacker had done and how he had done it. It appears that the author of this Mechilta holds that the attacker is to be freed from the need to pay for loss of income only if the victim died because the injury he received was lethal. If the victim had succumbed to a non-lethal blow, a situation in which the attacker would not be guilty of the death penalty, he would have to pay the various payments an injured person would have been entitled to. If the attacker did not pay the victim before he died, he would have to make these payments to the estate of the victim.

וכי יריבון אנשים, “if two men engage in an argument that has become physical;” from this wording I might think that the legislation which follows applies only to males, how do we know that it applies equally to females? Rabbi Eliezer says that seeing that when the Torah discusses the subject of compensations for damages caused is written in general terms not mentioning men or women separately and mentions genders only a single time (in verse 29, i.e. that the victim is either man or woman) it is clear that the entire subject applies equally to both sexes. או באגרוף, “or with a certain type of stone,” (according to the Targum) The same expression is used by Torat Kohanim when explaining Leviticus 14,40 where the treatment of an eruptive like plague on the walls of a house is discussed. The usual translation of אגרוף, is: ”fist,” possibly not acceptable to the sages, as it is not a lethal tool, and the death of the victim within 24 hours, which according to Torah law would be equivalent to murder, seems unduly harsh.

באבן או באגרוף, “with a stone or a fist.” The term “fist” means a hand in which the fingers have been clenched. The word occurs also in Rabbinic Hebrew such as in the Mishnah Keilim 17,12 אגרופו של בן בטיח, “someone known as big-fisted.” Members of the family of David were known to be aggressive, i.e. big-fisted (Kidushin 76). The Torah here describes two blows, one a hard blow, the other not so hard. The judges will have to consider whether either one of the blows was hard enough to cause death to most people struck by such a blow. A blow similar to a stone is the heavy blow, whereas a blow similar to that struck by a fist is considered a lighter blow. When a person dies from the “hard” blow, the striker is considered a murderer and will be executed. When the victim is only temporarily disabled but does not die, the striker must pay different kinds of compensation, primarily for loss of income and doctor’s fees. The full meaning of the verse is: if the victim recovers sufficiently after having been bed-bound to leave the house and walk outside any relapse is not considered the fault of the one who struck he original blow, even if the patient walked with the aid of a crutch as do people who are enfeebled. In such cases the one who dealt the blow is free from criminal proceedings and faces only civil charges, i.e. assessment of damages. Even if the victim neglected his injuries and left he house prematurely, while still weak, so that he dies as a result, the one who administered the blow is not held responsible for his death by court action. The Torah describes a situation which is usual, i.e. that the injured party does not leave the house until he has sufficiently recovered from his injury. At that point he is considered as out of danger and whatever happens to the victim afterwards is attributed to causes other than the blow or blows he had sustained during the attack described in our verse. This is the reason for the words והתהלך בחוץ, “if he walked outside.” Had he risen from his bed but only walked inside his house before dying, the attacker would be blamed for his death and would be charged with murder. Mechilta (Nezikin section 6) interprets the verse by dissecting each word; the words אם יקום והתהלך, “if he rises and walks by himself,” are interpreted as walking in the house; to make sure we do not misunderstand, the Torah added the word בחוץ, “outdoors.” Had the Torah only written והתהלך בחוץ, omitting the word יקום, I would have concluded that as long as he was able to even stagger or limp outside this would be sufficient proof that he was out of danger from the blows he had received. Therefore the Torah added the word יקום, i.e. he must have been able to get up in a perfectly normal, healthy-looking manner. Furthermore, the absence of the word ממשכבו, “from his sickbed,” makes it clear that he must have appeared to have fully recovered, without feeling the need or desire to lie down again as soon as he comes indoors. The fact that he still uses a cane is no sign that his life is still in danger from the blows received. The principle of the matter is that we do not judge the degree and danger of his injuries by the wording of our verse. The medical evaluation is determined by medical experts. The Torah simply describes a scenario which reflects what happens in most of these situations. The fact that the medical experts determine the likely cause of death of such a victim is reflected in the translation by Onkelos who simply writes: על בוריה “according to his state of health.” The wording רק שבתו יתן ורפא ירפא, is carefully chosen by the Torah to forestall the injured party demanding medical expenses and then failing to consult a physician. The guilty part pays the doctor’s bill, he does not pay the victim the equivalent of what the doctor might have charged him (compare commentary by Nachmanides).

או באגרוף, “or with a fist.” According to our sages the word אגרוף refers to a fist, i.e. a palm balled into a fist. It describes the injury being caused as like a punch by a boxer. The reason the Torah mentions either a stone or a fist as being the cause of the non-fatal injury, is that both a stone and a fist when used in a fight are proof of a degree of premeditation. Even though, generally speaking, a stone inflicts a more serious injury, both of these weapons do not as a rule cause fatal injuries, although, admittedly, being hit by a stone appears to be more serious. Some commentators understand the word אגרוף as referring to dust, the word occurring in this context in Joel 1,17 עבשו פרודות תחת מגרפותיהם, “the seeds have shriveled under their clods of earth.”

או באגרוף, according to the plain meaning, as Onkelos translates, i.e. with a stone or brick. This is also the opinion of Torat Kohanim in its commentary on Leviticus 14,40. The departure from understanding the word אגרוף as “fist,” is justified with the question: “is someone to be executed for hitting merely with a fist, not a lethal tool?” Isaiah 58,4 להכות באגרוף רשע, “to strike wickedness with a fist” would hardly be a deterrent. It is therefore understood to refer to a large stone. Moreover, when the Torah reports that the victim did not die, surely one does not normally die by being struck with a fist; it stands to reason that the Torah refers to a lethal weapon which failed to kill, i.e. a brick or something similar held in one’s fist causing serious injury.

if he rises and goes outside in his health, the one who struck him shall be acquitted; he shall pay only for his loss of work and shall pay the physician's fee.

על משענתו (lit., with that on which he relies) — i. e. his former healthy state and vigour (Mekhilta; cf. Onkelos). ונקה המכה [WHEN HE RISES AGAIN…] HE THAT SMOTE HIM SHALL BE FREED — But could it enter your mind that this person who has not killed anyone at all should be subject to the death penalty? Why, then, is it necessary to state this? But it is intended to teach you that he is kept in prison until we discover whether the other is completely healed or not, and what the verse implies is this: when this man rises again (אם יקום) and walks in the street in his former vigour, then he who smote him shall be freed from prison, but so long as the other has not risen from the sick-bed etc. the man who smote him is not freed (Ketubot 33b; Sanhedrin 78b). רק שבתו ONLY [HE SHALL PAY FOR] THE LOSS OF HIS TIME — i. e. for the interruption of his labour due to this illness. If, for instance, he cut off his hand or his foot, we regard the interruption of labour caused by this illness as though his occupation were that of a watchman in a cucumber field (which work can be done even by a man lacking a hand or a foot), for even after he has recovered from the illness he will not be able to do work which requires hands or feet, and indeed the value of his hand or his foot that was cut off the other has already paid to him as “damages” (נזק), as it is said, (v. 24) “hand for hand, foot for foot”. (Having compensated him already for loss of capacity as a wage-earner whole in body, it would not be right if this man has again to pay him for loss of time as though he were of full-earning capacity) (Bava Kamma 85b). ורפא ירפא — Translate it as the Targum does: he shall pay the physician’s fee.

IF HE RISE AGAIN, AND WALKS ABROAD ‘AL MISH’ANTO’ — “in his former healthy state and vigor.” This is Rashi’s language. And Rabbi ibn Ezra said that the reason why this word [which means literally: “support”] is used, is to tell us that he must not be dependant upon others for the ability to walk, like an invalid, but must walk by himself; only then shall he that smote him be quit from prison. In my opinion, mish’anto is to be understood in its literal sense, [a staff], just as in the verses: every man with ‘mish’anto’ (his staff) in his hand for old age; ‘mish’eneth’ (the staff) of this bruised reed. Scripture is thus stating that if the injured person’s health improves sufficiently to enable him to go out walking as he wishes in the streets and in the broad ways with his staff, like those healed from some prolonged disabling injury, then shall he that smote him be quit; and it further teaches us that even if the injured man is careless later about his health and dies after that in his weakness, the assailant is free from the death penalty. Scripture says and he walketh abroad because it speaks of the customary way of life, for injured men who were laid up in bed do not go out walking again until their wounds have healed and they are out of danger, this being the sense of the phrase, and he walketh abroad, because if he just gets up and walks in his house on his staff, and then dies, the assailant is not free [from the death penalty].In the words of the Mechilta: “If he rise again and walketh. I might think this means within the house; Scripture therefore says, abroad. But from the word abroad I might think that even if he was wasting away [the assailant is still free from punishment]; Scripture therefore says, if he rise again.” This explanation too is very correct, that Scripture should be saying that if the injured man gets up completely from his bed and goes steadily outside — without having to go back to his bed when returning from outside, as is the way of those who continue to waste away — even though he is weak and has to lean upon a staff, the assailant shall be let off. In general all this is to be interpreted as being figurative, language expressing people’s practical conduct, and the basic rule is that he must have been assessed as being capable of recovery. This is why Onkelos translated al mish’anto: al boryeih (in his healthy state). Scripture states, only he shall pay for the loss of his time, and shall cause him to be thoroughly healed, but it does not say, “he shall pay for the loss of his time and his medical care.” in order to tell us that he must pay the money for the doctors to heal him, and the injured person cannot demand that he should give him the compensation and he will do other things with it. Instead, the assailant must heal him under all circumstances.

"If he rises and walks about" — We rely on our Sages, who interpreted "on his staff" to mean that he does not lean on another, as sick people do, but walks on his own. — "The striker shall be acquitted" — they shall release him from prison. — The meaning of שִׁבְתּוֹ — it is from the root שְׁבִיתָה, that his work has ceased. This is the correct interpretation, and it is on the pattern of שִׁבְרוֹ (Gen. 44:2), where the tav is a root letter. It may also be understood as: "the house rested a little" (שָׁבְתָה הַבַּיִת מְעָט, Ruth 2:7), which is from the root יָשַׁב — meaning the time of sitting in the house, idle, without doing his work. The evidence for this second interpretation is that it is contrasted with "and he walks about outside." — "He shall cause him to be thoroughly healed" (וְרַפֹּא יְרַפֵּא) — as a sign that He granted permission to physicians to heal wounds and injuries that are visible externally; but every inward sickness in the body lies with God to heal, as it is written: "for He wounds and He binds up" (Job 5:18), and it is written regarding Asa: "even in his illness he did not seek Hashem, but rather the physicians" (II Chron. 16:12). So Scripture drew a distinction here: it did not say "he shall heal" (וְרָפָא יִרְפָּא) in the simple conjugation (binyan kal), but rather וְרַפֹּא יְרַפֵּא in the intensive conjugation (binyan kaved). I will explain this further in this passage. Our Sages received additional items beyond these two, just as they received other matters together with the incense spices — items that are not written.

רק שבתו יתן ורפא ירפא, he shall only pay for loss of income and cause him to be cured completely. This means that even if the victim has regained the ability to get around unassisted but he cannot yet pursue his occupation, the attacker has to continue payments for loss of income. The same applies to continued medical supervision of the victim if the latter deems same as necessary. We may understand the word רק as referring to something mentioned by Maimonides in Hilchot Chovel Umazzik. We estimate the cost of medical care as well as the loss of income as soon as the fight is over and the attacker makes these payments immediately. If the estimate proves wrong and the victim takes longer to recover, the attacker is not assessed additional damages. This ruling applies only if the attacker is willing to pay the whole amount of damages immediately. If the attacker preferred to compensate the victim on a day to day basis this limitation on the amount of total damages assessed by the judges does not apply. Maimonides appears to have derived this rule from the word רק in our verse. ורפא ירפא. and he will provide full medical services. This too can best be explained by what Maimonides wrote in the above-mentioned chapter of Hilchot Chovel Umazzik. "If the victim said to the attacker: 'pay me cash and I will look for my own doctor, etc.,' one does not take any notice of this." The ruling is derived from the wording in our verse which strongly suggests that the onus of providing medical care is on the attacker personally. This is in contrast to the payment for loss of income where the Torah spoke of the attacker "giving" the payment directly to the victim. There are many other interesting rules which have been derived from the repetition of the words ורפא ירפא.

אם יקום והתהלך בחוץ, “if he (the person who had been knocked to the ground) gets up and walks outside the house unaided;” if that person takes to his bed and does not even partially recover, so that he dies before having been able to walk, the party that knocked him down will be tried for murder (and executed if he had been duly warned by witnessing observing the fight). על משענתו, “supporting himself on his walking cane;” the word משענת is used in the Bible in this sense in Kings II 4,29: וקח משענתי בידך, ”and take my walking cane in your hand;” [Elisha speaking to his servant Geychazi) שבתו, “compensation for income lost through being bedridden;” Compare use of this expression in Ruth 2,7: זה שבתה הבית מעט, “she has rested but a little.” יתן, he (the one who inflicted the wound) has to “give,” even if the wounded person recovered without having sustained permanent damage.

ורפא ירפא, “and he shall provide for healing.” Whenever the Bible mentions the word רפואה when applied to a human being the letter פ always appears with the dagesh. For instance Jeremiah 51,9 רפאנו את בבל ולא נרפתה, “we tried to cure Babylon but she was incurable;” when we find the word used as something being performed by G’d then there is no dagesh in the letter פ. Example: Jeremiah 17,14 רפאני ה' וארפא, “Heal me O Lord and I shall be healed.” Another example is found in Psalms 147,3: הרופא לשבורי לב, “He heals the broken-hearted, etc.” There are many more examples. The reason for this distinction in the spelling of the description of the applied cure is that when man, i.e. a physician, administers a cure it is apt to be accompanied by pain and suffering, whereas a cure administered by the Lord is a painless procedure. This is part of the meaning of Proverbs 10,22: “the blessing of the Lord enriches, He does not add sorrow to it.” When the sages in Baba Kama 85 stated that the words ורפא ירפא in our verse constitute permission for a physician to practice his art they said so only in connection with externally visible injuries or symptoms of diseases; internal diseases, especially mental diseases are not subject to treatment by physicians of flesh and blood. They are the sole domain of the One who provides the soul to all living creatures. [This interpretation seems to be based on Ibn Ezra, but is disputed by other authorities. Ed.].

על משענתו, “on his cane.” According to Rashi the Torah means that the injured person can manage to walk without any external assists, as distinct from sick and weak people who require canes or “walkers.” Nachmanides writes: “it appears to me that the Torah means that if this injured person is able to walk even only with the help of a cane, or “walker,” that the person who has hit him is exonerated from the charge of manslaughter (if eventually, more than 24 hours later the victim dies) The Torah’s example is based on the most likely result of injuries sustained by being struck by a stone or a fist. The immediate result may be a short sojourn in bed followed by a rapid recovery. The fact that the victim has ventured outside before he died, is an indication that any danger he had been in had already passed before that stage. If he had only been able to hobble around indoors, the attacker is not exonerated from causing the death of his victim. רק שבתו יתן ורפא ירפא, “he only has to pay compensation to the victim for time lost from work, and for his medical expenses.” The Torah refers only to the fee of the attending physician, not to the cost of medications, which, if prescribed by the physician will also be supplied by him. The victim is not entitled to forego the medications and retain the cost of them. Unless he uses them, the attacker is not liable for their cost. Our sages derive from the wording ורפא ירפא that the physician is permitted to practice his art, and that we do not adopt the attitude that if G’d wants him to recover he will recover and if not he will die, i.e. that it is not up to us to interfere. (Baba Kama105). The comment in the Talmud is strange as we have a law (Leviticus 19,16) that one must not stand idly by when a fellow Jew is in mortal danger and could be saved when one takes the appropriate action. The answer given is that the verse ורפא ירפא is needed to make clear that if through lack of skill or misdiagnosis the patient dies after receiving treatment, we do not hold his physician responsible for the death. Another interpretation of the line is that the physician is entitled to charge for his services. If not for this verse we would have assumed that it is one’s moral and ethical duty to heal for free, just as judges do not get paid, and just as Torah is taught for free. [the latter, no longer common, is excused by Abravanel on the grounds that if the teacher of Torah is economically underprivileged, lives in dire circumstances, his students will not want to “buy his wares,” i.e. his Torah, believing that Torah scholars are slated for a life of poverty. Ed.]

'אם יקום והתהלך וגו, if he dies, even after a lengthy interval, the attacker will be executed. If the victim was one’s servant the owner is guilty of the death penalty only if the victim died immediately as the result of the blow, not if he survived for a day or two. שבתו, loss of income from the victim’s normal occupation by being bedridden.

And when a man strikes his male slave or his female slave with a rod, and he or she dies under his hand, he shall surely be avenged.

וכי יכה איש את עבדו או את אמתו AND IF A MAN SMITE HIS SERVANT OR HIS MAIDSERVANT — Scripture speaks of a Canaanitish servant. Or perhaps this is not so, but it speaks of a Hebrew servant? Scripture however states, (Exodus 21:21) “for he is his money”. How is it in the case of his money? It is something that is his forever (i. e. it is something the possession of which is not limited to a definite time)! So also the servant referred to here is such a one as is his forever (and only a Canaanitish servant serves his master for ever, cf. Leviticus 25:46, whilst the Hebrew servant goes free after six years). But surely he (one that smites his servant) is included in the general statement, (Exodus 21:12) ”Whosoever smiteth a man [so that he die shall surely be put to death]”; why, then, is this case mentioned at all? But Scripture singles it out from the general statement that he (who smiteth his servant etc.) may be subject to the particular regulation of “a day or two” (Exodus 21:21) — that if he (the servant) does not die beneath his hand and continue to live twenty-four hours his master should be freed from the death-penalty (Mekhilta). בשבט WITH A ROD — Scripture speaks of a rod that is capable of inflicting death. Or perhaps it speaks even of one that is not capable of inflicting death (but some-how or other the servant died beneath his hand)? Scripture however states, (Numbers 35:17) in reference to an Israellite (cf. Numbers 35:15) “And if he smote him with a stone in the hand, wherewith he may die, [and he die, he is a murderer]”. Now is not the following statement a logical conclusion à fortiori? How is it if one has killed an Israelite whose case is more stringent (inasmuch as the leniency mentioned in v. 21 is not applied to it)? He is not subject to the death penalty unless he smote him with an instrument capable of inflicting death and unless it be a limb through the striking of which by such an instrument he is likely to die! Then in the case of a servant where (as can be seen from v. 21) the conditions are less stringent, does it not follow all the more that he is not subject to the death penalty? (cf. Mekhilta). נקם ינקם HE SHALL SURELY BE AVENGED — This means execution by the sword. For thus does Scripture state, (Leviticus 26:25) “a sword avenging the vengeance of my covenant” (Mekhilta; Sanhedrin 52b).

IF A MAN SMITE HIS BONDMAN. Our Sages have already perforce derived from the expression, for he is his money, that this verse speaks of a Canaanite bondman, and the plain meaning of Scripture is indeed as they say, for his countryman, a Hebrew man or woman, is not called plain eved or amah without any further qualifications. Scripture states ‘basheivet’ [with a patach under the beth, which indicates the definite article, thus meaning] “with the rod”: [And if a man smite his bondman, or his bondwoman, with the rod], because it is the custom of a ruler or master to keep in his hand a rod, and G-d therefore warned him that even if it be a rod of correction and not a wooden cane, he should be careful with it and should not use it to hit even a Ganaanite bondman with a persecution that none restrained. This is the purport of the expression, and he die under his hand, meaning that he kept striking him until he died. It was not necessary for Scripture to state the punishment which he is liable to, but it just stated that he is not to go free merely because the bondman is his money, but he shall surely be punished, as is the punishment of anyone who strikes another person so that he dies, where Scripture has said, he shall surely be put to death. In line with the plain meaning of Scripture the intention of: Notwithstanding, if a day or two ‘ya’amod’, [generally translated “he continues”], is that the bondman literally gets up “and stands” on his feet. This is why it was necessary for Scripture to say a day or two, the meaning thereof being that if on that day or on the following day the bondman will stand up on his feet, he [i.e., the master] shall not be punished. And the verse is to be understood as if it said: “notwithstanding, [if he stands up] ‘bayom’ or ‘bayomayim’ (in a day or in two) or ‘l’yom’ or ‘l’yomayim’ (to a day or to two). There are many such cases [where the prefix beth or lamed is missing as it is assumed in the meaning of the word]. Thus, at first He had said, and he die under his hand, which might be taken to have meant that the bondman died immediately at the time he struck him; therefore He referred back and explained that if on the day he struck him he stood up on his feet, or even if he could not stand at all on that day, but did so on the next day, the master is free from punishment. But if he did not stand up at all, the master is liable to punishment, even though the bondman only died on the second day, for that too is considered as if he died under his hand. It did not mention a case where he stood up on the third day, for if the bondman lived three days, the master is free from the death penalty, since this is no longer considered a case of he die under his hand. In the opinion of our Rabbis Scripture mentioned yom o yomayim [“a day or two,” and not bayom o bayomayim, “in a day or in two”], in order to teach us that [for the master to go free] the bondman must have survived twenty-four hours, and the meaning of the express...

"And when a man strikes" — there is no doubt that the law of an Israelite — whether free or sold into servitude — is the same in all matters. Therefore this cannot refer to a Hebrew slave. Furthermore, toward the end it says "for he is his money." This slave and maidservant are those of whom it is written: "from them you may buy a male and female slave" (Lev. 25:44). The bet of בַּשֵּׁבֶט is vocalized with a patah because that was his customary instrument of striking. Now, all those who dispute our Sages must, in spite of themselves, rely on them regarding the word נָקֹם יִנָּקֵם, because vengeance (נְקָמָה) takes many forms; therefore their reasoning is unhelpful in this place. The forefathers received that this is like "the sword avenging with the vengeance of a covenant" (Lev. 26:25).

נקום ינקם, the blood of the slave. The master is certainly not permitted to administer such a cruel blow even though he owns this human being. He is allowed to administer physical punishments as we know from Proverbs 29,19 בדברים לא יוסר עבד, “a slave does not respond to mere oral chastisement.”

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.

וכי יכה איש, “and if a man strikes, etc.;” how do we know that the verse also addresses women? Rabbi Yishmael says what we already attributed to Rabbi Eliezer as an answer to this question on verse 18. בשבט, “with a rod;” the Torah chooses as an illustration instruments with which the average master disciplines his slaves. This is why the first letter ב in this word is “open,” as if the Torah had written: בהשבט. If the master had struck that slave with a sword or other instrument used to inflict death, he will be treated as an intentional murderer even if his victim survived for a day or two, seeing that this was not the way one disciplines a person. ומת מחת ידו, “and he dies as a result of this beating;” seeing that he had used permissible means of disciplining, the death of the victim is attributed to something like an accident, the master not having intended to deprive himself of the services of this slave. An alternate interpretation of the expression: תחת ידו; “while still being beaten;” this is no longer “disciplining,” but killing with one’s own hands.

וכי יכה איש את עבדו או את אמתו בשבט, “if a man (master) hits a male slave or a female slave with a stick, etc.” Whenever the Torah uses the word עבד or אמה, it refers to a Canaanite slave. Additional evidence that this paragraph deals with Gentile slaves is the fact that the Torah describes this slave as “his money,” i.e. one whose body is owned by the employer. Jewish servants’ bodies are never owned by their employers. Nachmanides writes that the word בשבט with the vowel patach under the letter ב which is equivalent to a definitive article indicates that the master is normally walking around with such a stick as a sign of his authority. The Torah warns that although it is common knowledge that such a staff is used to discipline with, the master is not allowed to do this. The words תחת ידו, indicate that he has been hitting the slave incessantly until the slave died as a result. The Torah writes simply נקום יוקם that such a deed will be avenged without spelling out the details. The principal message of the verse is that just because the master “owns” the body of the slave he is not at liberty to abuse it, much less to kill it. The wording “he will surely be avenged” means that just a the master would be held responsible for murder, i.e. killing with lethal force, any other human being not owned by him, so he is liable when he causes death with a lethal instrument to his slave. Seeing the standard death penalty for killing with intent is by the sword the same death penalty is applicable in our case also. This is spelled out more clearly in Leviticus 26,2: והבאתי עליכם חרב נוקמת, “I will bring upon you an avenging sword,” a verse in which the close association of vengeance and the sword is clearly demonstrated. Rabbeinu Chananel explains the reason why the Torah in this instance uses the expression ינקם, ”he will be avenged,” as based on the fact that the master used his authority, etc., to mask the killing of his slave as merely a disciplinary measure which had had sad consequences. In fact, the master had planned to kill this slave for personal reasons and had made it appear as if it were an accident. Seeing he himself had killed as an act of revenge, his own execution will also be considered as an act of vengeance.

וכי יכה איש את עבדו, “if someone strikes his (gentile) slave, etc.” The subject of this verse is only a gentile slave, whose body is owned by his master. The Torah teaches that although the stick had been used as a disciplinary rod, and the stick was not a walking cane (whose use as a disciplinary means might inflict far more pain and injury,) the owner must take care not to inflict the kind of injury that might prove lethal. Otherwise, the death is to be avenged.

בשבט, an example of an instrument used to administer physical punishment to one’s slave in order to discipline him. If the slave had been struck with a sword, for instance, even if he had not died within the first twenty four hours, the master would be guilty of manslaughter as the tool used to inflict the injury points at criminal rather than disciplinary intention. The subject of our verse is a gentile slave. A Jewish servant, by contrast, not being the personal property of his master, is treated legally in all respects as if he were a hired hand, with the exception of his master (employer’s ) right to give him a gentile slave as his wife.

However, if he survives for a day or two days, he shall not be punished, for he is his silver.

אך אם יום או יומים יעמד לא יקם NOTWITHSTANDING IF HE CONTINUE A DAY OR TWO, HE SHALL NOT BE AVENGED — If the master is free of the death penally in case of the servant remaining alive one day, is it not logical that he is free if he lives two days (what need is there for Scripture to add יומים)? But it adds it to show that the term יום is to be defined by יומים — “a day that is like two days”. And what kind of day is thereby meant? A period of twenty-four hours (a day which comprises a part of two separate days) (cf. Mekhilta). לא יקם כי כספו הוא HE SHALL NOT BE AVENGED: FOR HE IS HIS MONEY — However, any other person who smote him (the servant) is subject to the death penalty although he lived 24 hours before dying.

"However" — The form יֻקַּם, which is from the passive conjugation, is equivalent to יִנָּקֵם, from the nif'al. The Karaites said that the meaning of נָקֹם יִנָּקֵם is a great punishment — to chastise him; and if the slave survives one day, the punishment is lesser; and if two days, there is no punishment at all. Their proof was that we do not find the word נְקָמָה (vengeance) in the context of the court's death penalties. They also said that "the sword of vengeance" is not an absolute proof that it means killing. Furthermore, they said, since Scripture said "a day," why did it need to say "two days"? All of this was troubling to them — that the master should be put to death for the death of the slave. I shall reply to them: why did Scripture not specify what the greater or the lesser punishment is? Rather, let us follow the scriptural texts: "avenge the vengeance of the children of Israel" (Num. 31:2) — and all the Midianites were killed. Samson said: "if I take revenge on you" (Judg. 15:7), and afterward it is written that he struck them "hip upon thigh" (ibid., v. 8). And: "I will avenge myself once more" (ibid., 16:28), and those in the house died — "with a two-edged sword in their hand" (Ps. 149:6), followed by "to execute vengeance on the nations" (ibid., v. 7). And: "He will avenge the blood of His servants" (Deut. 32:43) — the word דָּם (blood) points to killing. In all of Scripture, this language points to killing. Scripture here uses the word "vengeance" for this death, because the master is implicated through his slave — since the slave is under his authority, as he cannot strike a fellow Israelite, his brother. This is what it means by "a day or two days" — similar to "by the testimony of two witnesses" (Deut. 17:6), and they admitted they did not know the reason for that. If so, let them accept this one alongside it. Our Sages, of blessed memory, said that the reason for "a day or two days" is that the hours must total twenty-four — a full day. When we examined this carefully, we found that it says "with a rod" — a rod of discipline, as in "you shall beat him with the rod" (Prov. 23:14) — meaning the master's intent is to discipline him, not to kill him. And Scripture did not state what the law is when a master actually kills his slave — because it is the master's custom to have mercy on his money and not to kill him, just as he has mercy even on his animal. But God commanded that when the master disciplines his slave, he should not discipline him with cruel discipline: for if he sees his life departing beneath the rod, he should stop; and if he does not stop, he is to be killed on his account — for God's mercy extends over all His creatures. And it is written regarding David: "you have shed much blood" (I Chron. 22:8), yet they were not of Israel.

כי כספו הוא, and it is up to him to discipline him. Sometimes a slave’s insubordination continues until the master is forced to administer a strong blow. We have read of such in Proverbs 17,11 ומלאך אכזרי ישלח בואך מרי יבקש רע, “an evil man seeks to rebel; therefore a cruel messenger will be dispatched against him.”

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.

יום או יומים, “a day or two days.” The reference is to one day that is equivalent to two days. The verse could not be referring to actual days, as if even one day’s survival is sufficient to absolve the killer from the charge of murder, survival for two days would not need to be mentioned. According to the plain meaning of the text, in consonance with the practice of the Torah, we can simply translate this as “he does not even have to survive two days for the master not to be accused of murder, even a survival of 24 hours is sufficient.” We find a parallel construction in Deuteronomy 17,6: על פי שנים עדים או שלשה עדים, “on the basis of the testimony of two witnesses or three witnesses.” כי כספו הוא, “for he is as if his own money.” He has full control of the servant including beating him, but only in order to discipline him. (Rash’bam)

אך אם יום או יומים יעמוד, “however, if he will survive for one or two days, etc.” if the Torah had referred only to the possibility of this slave surviving one day we would have understood the word יום as the day of the Torah, i.e. an evening followed by night and a day, such as the days described in the first chapter of Genesis. By adding the word יומים, a day which appears as if two days is included. In other words, a 24 hour-period composed of two different daylight periods. Seeing that the words ומת תחת ידו, and he died under his hand,” gave the impression that the death penalty would apply only if the slave died as an immediate result of the beating, it had to add that if he died within the next twenty-four hours such death would still be attributed directly to the beating he had received. A survival until the third day is not mentioned as in that event the master would not be liable through court action (Nachmanides). At this point it is pertinent to ask why the Torah did not use this opportunity to describe what the law is when someone hits father or mother violently enough so that they die as a result of the blows sustained. The answer is that a situation occurring where the son deliberately beats the father to death is so unlikely that there was no need to legislate in the Torah for such a likelihood. Masters beating their slaves to death in a fit of anger is far more likely, however. We humans cannot always determine the intent behind the blows. When the victim survives for the period mentioned, however, we conclude from this fact that there had never been an intent to kill the victim with these blows. Seeing that one does not generally destroy one’s own property, כי כספו הוא, in such cases the master is given the benefit of the doubt.

“But if he survives a day or two days, he shall not be avenged, for he is his money.” Not only one day but even two days, for one might have thought that since he lived for two days and died on the third day, he certainly died from his injury, as the pain is most severe on the third day, as it is written On the third day, when they were in pain (Genesis 34:25). Therefore the verse teaches us two days, because whether one day or two days, we attribute [the death] to something else that developed in him. And [the master] certainly did not strike him with a cruel blow that could be fatal, “for he is his money” — and is there a person who would willingly destroy his own money? Certainly he did not strike him severely because he values his property, and [the slave] died due to something else.

אך אם יום או יומים יעמוד, “but if he will survive one or two days, etc.” seeing that if a survival of a single day suffices not to treat this death as manslaughter, why does the Torah add the words “or two days?” Our sages answer that what the Torah refers to is a day that is comparable to two days, i.e. the minimum period of survival is 24 hours, even on two successive calendar dates. (Mechilta)

כי כספו הוא, and it is in order to administer a bodily blow in order to discipline him.

אך אם יום או יומים, “but if he survives for a day or two, etc.” Rashi commenting on verse 20, explains that the subject in that verse was either a Canaanite slave or slave-woman, and that our verse was necessary to describe under what circumstances the scenario described here has been exempted from the general rule applying to someone who struck his Canaanite slave, fatally, with an object that could be assumed to cause death. If death was delayed by at least 24 hours, the master is not treated as a murderer, but as someone who had disciplined someone whom he owned physically. [At this point the author engages in a discussion of the applicability of two closely related principles of Torah exegesis, known as the thirteen principles of Rabbi Yishmael, something extremely complicated for anyone not familiar with these principles. This editor does not think that he is qualified to explain this adequately to his readers, and has decided that rather than to confuse the reader he will omit this. He points to what Rashi himself has written in his commentary on verse 12, that he will endeavour to explain this legislation and why it appears so many times in the Torah, each time in a slightly different format. If even Rashi felt this way, this editor may be forgiven for preferring to skip part of this. Ed.]

And when men quarrel and strike a pregnant woman and her child comes out, and there is no fatality to the woman, he shall be fined as her husband places upon him, and he shall pay according to the ruling of the judges.

וכי ינצו אנשים IF MEN STRIVE with each other and one intended to strike the other and inadvertently struck the woman (Sanhedrin 79b). ונגפו AND HURT [A WOMAN WITH CHILD] — The root נגף always signifies “dashing against” and “striking”. Examples are: (Psalms 91:15) “lest thou dash (תגוף) thy foot against a stone”; (Jeremiah 13:16) “and before your feet dash (יתנגפו)”; (Isaiah 8:14) “but for a stone of dashing (נגף). ולא יהיה אסון AND YET THERE BE NO MISCHIEF — no further mischief with the woman (Sanhedrin 79b). ענוש יענש HE SHALL SURELY BE AMERCED to pay the value of the offspring to the husband. We estimate her value according to what she is worth if she were sold as a slave in the market giving her a higher value on account of her being with child (Bava Kamma 49a). ענוש יענש (lit., he shall surely be punished) — It means that they shall exact money from him. ענוש is used here in the same sense as in, (Deuteronomy 22:19) “And they shall amerce (וענשו) him an hundred shekel of silver”. כאשר ישית עליו וגו׳ means, when the husband will summons him before the Court that they should place upon him a fine for this (cf. Mekhilta), ונתן THEN HE SHALL GIVE — i. e. the man that struck the woman shall give the value of the offspring. בפללים ACCORDING TO THE DECISION OF THE JUDGES (Mekhilta).

AND IF MEN STRIVE TOGETHER, AND HURT A WOMAN WITH CHILD, SO THAT HER FRUIT DEPART, AND YET NO HARM FOLLOW, HE SHALL BE SURELY FINED, ‘KA’ASHER’ THE WOMAN’S HUSBAND SHALL LAY UPON HIM. “This means: ‘when’ the husband will summon him before the court in order that they put a fine on him for it.” Thus far Rashi’s language. And it is correct [to interpret here the letter kaf in the word ka’asher as meaning “when”, and not “as”]. A similar case is the expression, ‘ka’asher’ (when) it shall be well with thee, and there are many other such cases. And the intention of the verse is that the assailant has to pay compensation for the miscarriage when the husband takes him to court, not when the woman does so, as the compensation is not hers. Onkelos, however, translated: “according to the amount [that the woman’s husband] shall lay upon him.”Rabbi Abraham ibn Ezra explained the verse as follows: according as the woman’s husband shall lay upon him, or he shall pay as the judges determine, as if to say that the assailant should come to agreement with the husband on a fixed sum, or he should pay compensation as the court will assess him. This is not correct, for what reason is there to mention this?In my opinion, since the damage done is one that is not discernible in the unborn children themselves — for who could know their fortune — therefore Scripture said, that although he cannot be made to pay a precise monetary compensation, he should nonetheless be fined as a sort of penalty in the form of a sum of money which others [i.e., the judges] shall impose upon him. A similar usage [of the term onesh — punishment] is also found in these verses: and he put the land to ‘onesh’ (a fine); they drink the wine of them that have been ‘anushim’ (fined). Scripture is thus stating that the punishment be entirely as the woman’s husband shall lay upon him, because he desires his children and they are important to him, but he [i.e., the husband] should fix the sum through the judges, in order that he should not impose upon him an exorbitant sum. In the words of the Mechilta:, “According as the woman’s husband shall lay upon him. I might think this to mean, whatever he pleases; Scripture therefore says, and he shall pay as the ‘pelilim’ determine, and pelilim always means judges.”.

"And when men fight" — these men are Hebrews, striking one another; as it is written: "why do you strike your fellow?" (above, 2:13). — "And they strike" — the word וְנִגְּפוּ is inclusive of either one of them, for sometimes [a word] means "this one or that one," as in: "they shall be burned — he and they" (Lev. 20:14) — meaning this one or that one; and if both are Israelites, the law is the same for both. This woman is an Israelite. — "And there is no harm" — to the woman. — "He shall be fined" — on account of the children who were expelled and died. — "As the husband of the woman shall impose upon him" — the father of the children may do as he pleases with the one who struck, and if not, he pays as determined by the court, as in: "and God judged between them" (I Sam. 2:25).

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.

וכי ינצו אנשים, “if men fight,” why was there a need for this verse? Seeing that from verse 14 where we were told only that deliberate killing of one’s enemy is punishable by death, we would not have known that when one kills one’s friend instead of one’s enemy in a fight, he would not be considered as a murderer, we are told now that when the objective of an altercation was to kill one’s adversary, it does not matter that one had killed the wrong target by mistake. There are some commentators who do not understand this verse as prescribing the death penalty for the killer, but that he is only liable for monetary compensation to be assessed by the court. (Rabbi Yitzchok in Mechilta Mishpatim chapter 8) He interprets our verse along the following lines: as long as we had only heard Leviticus 24,17: if someone deliberately smites a human being (so that he dies) the killer must be executed, even if that human being had been born after a pregnancy of only eight months, (which according to the Talmud is not considered a baby with a regular life expectancy). The Torah here describes the premature birth of such a baby as a result of the mother having been struck as having given birth to a נפש אדם a human being in the full sense of the word. The wording in our verse makes it clear that only if the mother had been struck in the region of her body to which her fetus is sensitive, does the attacker deserve the penalty prescribed, not when she was hit on the head or other parts of her body not related to her pregnancy. An alternate explanation: even if only one of her fetuses was killed. [The wording in the verse speaks about fetuses, plural. Ed.] אשה הרה, “a pregnant woman; we would have known this as soon as we read the balance of the verse in which we are told that she lost her fetuses when the Torah speaks about her losing her fetuses prematurely; how could she have done so unless she had been pregnant? The reason that the Torah had to first inform us that she had been pregnant was to teach us that the attacker’s penalty is related to the fact that she had been pregnant and he should therefore have been especially careful, as well as to tell us that if the loss of her fetus could be attributed to the fact that she had been hit in the region of her womb, the penalty of which the Torah writes does not apply. ענוש יענש, “he will be severely punished.” Rashi explains here that the financial penalty is the difference in value that the husband would receive on the slave market for offering a pregnant woman and one who is not pregnant (Bava Kamma 49a). The buyer would offer more money for the pregnant women because he would receive her as well as the babies. If you were to ask why the attacker is not subject to the death penalty for murder, the answer is that there is no certainty that they would have been born after nine months as healthy babies. If this is a relevant consideration why is it not applied to fully grown human beings who might have been terminally ill had they lived to die naturally? The answer is that we base ourselves on the majority of such cases where the victim would prove not to have been terminally ill. To the question why we do not apply the same logic to the fetuses? If we were to do this the attacker would also have to be guilty for hitting the woman who is the mother of these fetuses. We have to derive from the wording of the various verses dealing with violent encounters between people that as long as the fetus has not seen the light of day, it has no market value, as decided in the Talmud tractate Erchin folio 7, where it is stated that unborn fetuses have no claim to the estate of their fathers. כאשר ישית עליו בעל האשה, In accordance with the conditions imposed upon him by the husband of the woman; in the event that the men who were fighting had decided to settle their dispute out of court. If they cannot agree on the amount of compensation, ונתן בפלילים, he will have to abide by the court’s decision about damages. We find a similar construction in Leviticus 7,10: בלולה בשמן וחרבה, “mixed with oil, or dry.”

ונגפו אשה הרה, “and they collide with a pregnant woman,” the collision described was unintentional; ולא יהיה אסון “no ascertainable damage occurred,” to the woman although she miscarried. כאשר ישית עליו בעל האשה, “as the husband of the woman shall assess against him.” It is not the woman who had miscarried who will assess the amount of loss she has sustained. The reason for this is that the mother has no financial standing in her offspring. Although the Torah speaks of ילדיה, “her children,” giving the impression as if she had a proprietary interest in them, this is not so. The legal position of a woman and her children is similar to the legal position of a man to whom an object or animal has been entrusted for safe-keeping. [The male who impregnated her gave her his seed as a treasure to guard. In due course he would reclaim it, compare Kidushin 59]. The Talmud phrases it as “wherever the seed may be it remains the property of the donor-husband.” This is the reason that when the matter of compensation comes up the father determines the amount of compensation he feels he is entitled to. In the event that the father makes a claim which is perceived as excessive, the matter is adjudicated before judges, i.e. ונתן בפלילים. The way this verse is interpreted in Mechilta (Nezikin 8) is that if the Torah had only written the words כאשר ישית עליו, I would have concluded that the father of the prematurely born baby can demand any amount of compensation he likes. To make sure that he will not demand an excessive amount the Torah adds the words “he will give it (the man who caused the mishap) according to the decision of judges.”

כאשר ישית עליו בעל האשה, “according to the assessment levied upon him by the husband of the pregnant woman whose fetus died.” The Torah emphasizes that the injured party herself, i.e. the woman, is not allowed to determine the scale of compensation as she has no ownership rights concerning her children. [she is not allowed to “sell” her daughter, for instance, whereas the father is. However, she is compensated for pain, etc. Ed. Ibn Ezra explains that our verse allows for a mutually agreed settlement between the husband of the woman and the one causing the injury, failing which the court, i.e. בפלילים will assess the amount of damages payable. Nachmanides explains that the new aspect of this legislation is the fact that although the damage is not definite as no one knows if the woman would have successfully carried out this fetus, and normally when the value of the damage cannot be assessed with precision, no financial damages are payable, the nature of this payment is under the heading of “punitive damages.” The Torah gives the husband leeway to determine the amount of punitive damages due to him. The reason is that he is presumed to have a greater stake in the loss of this fetus. The reason that the Torah also involves the court, בפלילים is to ensure that the husband does not make unreasonable demands, above the value of such a fetus if it had been born already, for instance.

ולא יהיה אסון, and no harm will befall her. בפלילים, in accordance with the assessment by the judges trying the case.

But if there is a fatality, you shall give a life for a life.

ואם אסון יהיה AND IF THERE BE ANY FURTHER MISCHIEF — in the case of the woman, ונתת נפש תחת נפש THEN THOU SHALT GIVE SOUL FOR SOUL. Our Rabbis differ as to the explanation of the word נפש the first time it occurs here. There are some who say that it actually signifies “life” (i. e. life for life), others say that it means monetary compensation but not literally life, and they say that this must be so because he who intends to kill a certain person and inadvertently kills another instead, (as is the case here), is exempt from the death penalty, and has only to pay to his heirs his value estimating this as though he were sold as a slave in the market (Sanhedrin 79a).

"But if there is harm" — to the woman. There is a dispute: some say the striker is put to death, since his intent was to kill his brother; and their proof is that regarding the children it says "he shall be fined," whereas regarding the death of the woman it says "you shall give life for life" — and if it is only a monetary fine, what is the greater severity of the woman's death over the children? And if we say they are both monetary, why did Scripture change the wording to say "life for life"? Another opinion holds that one who intended to kill this person but killed another is not executed; and the reason Scripture changed the wording to say "life for life" is that the monetary penalty for a life is far greater than for children. Their proof is the verse that follows — "eye for eye" — which is not meant literally but refers to monetary compensation. And this passage is cited on account of "eye for eye, tooth for tooth," since afterward the law of the eye of the slave and his tooth is written.

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.

ואם אסון יהיה, “but if a mishap occur,“ to the mother. ונתת נפש תחת נפש, “then you shall award a life for a life.” Our sages (Mechilta) are divided as to the precise meaning of these words. Some hold that they are to be understood literally, i.e. that the guilty party pays with his life, whereas others hold that financial compensation is referred to. The first group of sages consider this an involuntary manslaughter, whereas the second group view it as a classical case of someone wanting to kill A and killing B by mistake when no death penalty applies. A Kabbalistic approach based on Rabbi Shimon bar Yochai: The words כי ינצו אנשים refer to a struggle between the angels Michael and Samael (the angel of death). The words ונגפו אשה הרה refer to the כנסת ישראל, the spiritual concept of the Jewish people becoming a victim. The words ויצאו ילדיה, refer to the Jewish people going into exile. The words ענוש יענש, “he will most certainly be punished,” refer to Samael in accordance with כאשר ישית עליו בעל האשה, “G’d the husband of the כנסת ישראל will impose upon him.” This “master” is G’d who will punish Samael בפלילים in criminal proceedings.

ונתתה נפש תחת נפש. There will not be additional financial damages payable.

אם אסון יהיה, “if an unexpected complication resulted, such as the premature stillborn death of the fetus, etc.” according to the scholar in the Talmud who holds that if a person intended to kill A and killed B instead by mistake, he is still considered guilty of murder, seeing that he had violated the commandment of “a life for a life,” as having to be understood literally, there is no problem here. According to the scholar who holds that these words here are not to be taken literally, but that what is meant is a financial penalty/compensation, to be paid by the perpetrator. The third opinion in the Talmud, Tanna de bey Chiskiyah, holds that the perpetrator does not even have to pay a financial penalty to the heirs of the victim. This opinion is expressed in the tractate Baba Kamma, folio 35, and is based on the following interpretation of our verse: The words: אם אסון יהיה, “if a mishap will occur,” are referring to the woman pregnant with child, not to her fetus; then the rule נפש תחת נפש, “a life for a life is applied,” seeing she, a living human being had been killed. The author adds that it appears to him that what went wrong here was that the killer had intended to kill the man he was fighting with, but had erroneously killed this woman. If we had not had this verse we might have thought that no death penalty would apply seeing that what he had intended to do had not been carried out; the Torah therefore repeats this expression “a life for a life,” to remind us that regardless of who had been killed by him he deserves death for having intended to kill a human being, something he had intended to do, and something which carries the death penalty.

An eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot.

עין תחת עין EYE FOR EYE — If one blinded the eye of his fellow-man he has to pay him the value of his eye, i. e. he pays him how much his value would be diminished if he were to be sold as a slave in the market. In the same way all other cases are to be dealt with, but it does not mean the actual cutting off of the offender’s limb — just as our Rabbis have explained in the chapter beginning with the word החובל (Bava Kamma 84a).

EYE ‘TACHATH’ (FOR) EYE. It is known in the tradition of our Rabbis that this means monetary compensation. Such usage [of the term tachath to indicate] monetary compensation is found in the verse: And he that smiteth a beast mortally shall pay for it; life ‘tachath’ life, [in which case tachath surely indicates monetary compensation]. Rabbi Abraham ibn Ezra commented that Scripture uses such a term to indicate that he really is deserving of such a punishment, [that his eye be taken from him], if he does not give his ransom. For Scripture has forbidden us to take ransom for the life of a murderer, that is guilty of death, but we may take ransom from a wicked person who cut off any of the limbs of another person. Therefore we are never to cut off that limb from him, but rather he is to pay monetary compensation, and if he has no money to pay, it lies as a debt on him until he acquires the means to pay, and then he is redeemed. Proof for what the Sages have said [that eye ‘tachath’ eye means he pays him the value of his eye], is in what He has said above [with reference to one who injures another person], only he shall pay for the loss of his time, and shall cause him to be thoroughly healed. But if we were to do to the assailant exactly as he has done to the injured man, why does he have to pay after that? He himself is in need of amends for the loss of his own time and costs of his own healing! And it would not be valid to argue that the assailant is to give the injured man [the difference in cost between a slow recovery and] a fast recovery, since this is not the plain meaning of Scripture. Rather, Scripture speaks of all people, and even if his recovery [i.e., the assailant’s] were to be fast, we would have long taken our punishment of him, in doing to him exactly as he did!If we explain the verses according to the literal interpretation of Scripture, there is no escape from this question, unless they will say that if someone maims his neighbor so that he deprives him permanently of some bodily member, such as an eye, hand, or foot, or causes a burn which leaves a permanent mark, then we are to do likewise to the assailant’s body, this being the case of the verse which says, As he hath caused a blemish in a man, so shall it be done to him, and in that case there is no monetary compensation paid for loss of time and cost of healing. But if he hits him with a stone or with his fist on his clothes, and he is laid up in bed but then is completely healed without any crippling effect remaining upon his body, in that case He said, only he shall pay for the loss of his time, and shall cause him to be thoroughly healed. All the injuries specified in the verse, burning for burning, wound for wound, stripe for stripe, are included, according to the plain meaning of Scripture, in this preceding general principle, for a wound and stripe may be completely healed. And as for that which Scripture states there, And if a man cause a blemish in his neighbor, as...

"An eye" — R. Saadia said: we cannot interpret this verse literally, for if a man strikes his fellow's eye and a third of its light is lost, how is it possible to strike him with exactly the same blow — neither more nor less? Perhaps the blow will darken all the light of his eye, and burning or wounding or bruising may be even more severe; if they are in a dangerous location he might die — and reason cannot accept this. Ben Zuta said to him: but it is written elsewhere: "just as he places a blemish on a person, so shall it be placed on him" (Lev. 24:20). The Gaon answered him: we have a bet that means "upon," so the meaning is "so shall it be placed upon him" — i.e., monetary compensation. Ben Zuta replied: "as he does, so shall it be done to him" (ibid., v. 19). The Gaon replied: Samson said, "as they did to me, so I have done to them" (Judg. 15:11), yet Samson did not take their wives and give them to others — he simply repaid them in kind. Ben Zuta then asked: if the striker was poor, what is his punishment? The Gaon answered: if a blind man blinds the eye of a sighted man, what can be done to him? A poor man may become rich and pay, but a blind man can never pay by losing sight. The rule is: we cannot give the commandments of the Torah a complete interpretation without relying on the words of our Sages, for just as we received the Torah from the fathers, so we received the Oral Torah — there is no difference between them. The interpretation of "eye for eye" is therefore: he is liable to have his eye taken in return, unless he pays its monetary value. — The Gaon said: there is a tooth whose penalty is minor, if the injured party is a youth who will grow another. Scripture mentioned the hand, for it is the working limb; and it mentioned the foot, which is more serious than the hand, for a person cannot walk on one foot. In my view, Scripture mentioned these limbs because they are common: when a man strikes his fellow, he strikes him in the eye which faces him, or in the mouth which faces him — breaking his teeth; or in the hand with which he fights or which he raises to defend his face; or in the foot as he flees.

עין תחת עין; this is what ought to be the judgment against the offender, if we were to apply the principle of the punishment fitting the crime in all its severity. However, according to tradition only financial compensation is exacted as we cannot accurately measure how to apply the principle of “an eye for an eye” literally.

עין תחת עין, “an eye for an eye.” Mechilta Nezikin section 8 understands these words as “the value of an eye for an eye,” and not that the guilty party is being deprived of his own physical eye. Proof that this interpretation is correct can be deduced from verse 19 where the Torah had legislated financial compensation for injuries caused to a fellow human being. If we would inflict upon a person who had struck and caused injury to another person a similar injury to the one he had inflicted, what would there be left for him to pay? He himself would then be in need of medical attention and he himself would then suffer loss of income while laid up? Furthermore, if we were to apply the principle of “an eye for an eye” literally, this would often not be justice at all. If a man ruins the only eye of a one-eyed individual and he had an eye of his removed as a penalty, the former would remain blind whereas the guilty party would still have a good eye to see with. What kind of justice would this be? Moreover, a weak individual might not survive having his eye gouged out so that he would pay with his life for having ruined a strong person’s eye. Surely this would not be justice! The only way a semblance of justice could be arrived at in the situations described in verses 24-27 is to make financial compensation for the damage caused. Furthermore, the Torah writes in Leviticus 24,19-20: “and if a man inflicts a wound on his fellow, as he did so shall be done to him; fracture for fracture, an eye for an eye, a tooth for a tooth; just as he will have inflicted a wound on a person, so shall be inflicted upon him!” It is quite impossible to carry out the instructions in this verse except by accepting the ruling of our sages that what is meant is financial compensation. You may well ask how it is possible to fulfill an instruction such as “as he has done so shall be done to him,” unless we inflict the same kind of injury that the guilty party has inflicted? Surely giving someone money in compensation for experiencing pain and suffering is not what the Torah had in mind when writing: ”as he has done so shall be done to him?” We need to answer that the meaning of the words: “as he has done so shall be done to him” is: “as he did something evil, so something evil shall be done to him.” The proof that this is what the Torah had in mind can be appreciated through the words of Shimshon who said: “as they have done to me so I have done to them” (Judges 15,11). When you read up you will find that the Philistines had stolen Shimshon’s wife and he had paid them back by burning their crops! There was no comparison at all between what the Philistines had done to Shimshon to the type of revenge he took upon them. The meaning of his words is obviously: “just as they have caused me personal harm and grief, so I have caused them plenty of harm.” We find something similar when the prophet Ovadiah (Ovadiah 1,15-16) prophesied about Esau “As you did, so shall be done to you (Esau). Your conduct shall be requited. That same cup you drank on My Holy Mount, etc.” You have now had a variety of ancient sources all proving that our sages never interpreted this verse of “an eye for an eye” to be understood literally. Thus far Rabbeinu Chananel. The verse mentions injury of seven different kinds: 1) eye; 2) tooth; 3) hand; 4) foot; 5) burn wounds; 6) פצע, an “injury.” 7) חבורה, “a bruise.” Each of this injuries contains at least one element not contained in all the other six, thus making it impossible to omit any of these seven examples. An eye is something we have from birth; teeth we are not borne with; their loss might be considered as less serious. Teeth are also not included in the 248 organs which make up man as a healthy specimen. All the 248 organs are covered with tissue and flesh whereas the teeth appear in our mouth completely exposed. The function of the teeth is not to help man survive as a viable human being, but they are merely a tool to break down the food we eat. Just as we could not have assumed that the legislation contained in our verse applies to teeth unless the Torah had made a point of writing it, so the loss of none of the seven examples cited by the Torah would have been presumed to be a cause for the freeing of a slave forthwith.

עין תחת עין, the monetary value of the eye destroyed. Our sages (Baba Kamma 84) have explained why the Torah needed to write so many examples for what appears to be the same legislation. Our verse discusses loss of an entire limb or organ.

A burn for a burn, a wound for a wound, a bruise for a bruise.

כויה תחת כויה BURNING FOR BURNING — כויה is a burn produced by fire. Up to here (i .e. v. 24) Scripture has spoken of a bodily injury that is attended by a decrease of the market-value of the person injured; here, however, it speaks of a case in which there is no decrease of value but pain alone: if, for instance, a man burns another on his nails with a hot spit, we estimate how much a person like him (the injured) would be willing to accept for undergoing a pain like this, and such an amount the other has to pay as indemnity (Bava Kamma 84b). פצע is an injury which draws blood — the accused having crushed the other’s flesh; navrure in old French In such a case it all depends upon what happens: if any decrease in his market-value is caused the other pays him an indemnity (נזק); if he is confined to his bed, he has to pay for loss of time, for medical treatment, for the shame he feels at being somewhat disfigured and for the pain he has been made to suffer. This passage, (פצע תחת פצע), is apparently redundant, but our Rabbis explained in the chapter beginning with the word החובל (Bava Kamma 85b) that Scripture intends by this statement to make one liable to pay for pain inflicted even in a case when one has already paid damages (נזק) for decrease in one’s value — that although he has paid him the value of his hand, we do not exempt him from paying also for pain inflicted, arguing thus: Since he has, so to say, purchased his hand by paying its value, he was entitled to cut if off by whatever means he pleases; but we say that he ought to have removed it by means of a poisonous drug when he would not have suffered so much pain. He, however, cut if off by means of an iron instrument and caused him great pain; therefore he is bound to pay for pain inflicted also. חבורה is a wound in which the blood is congealed but does not come out, only that the flesh on that spot becomes red. The word חבורה means tache in old French Similar is, (Jeremiah 13:23) “[Can an Ethiopian change his skin] or the leopard his spots (חברברתיו)”. The Targum renders it (חבורה) by משקופי, an expression denoting “beating”, batture in old French Similarly it translates (Genesis 41:6) שדופות קדים, “blasted with the east”, by שקיפן קדום, “beaten by the east wind”. So, too, the lintel it termed “משקוף” (from the root שקף “to beat upon”), as, e. g., in the expression על המשקוף, because the door beats against it.

"A burn" — a scorching by fire, in its plain sense. — Some say a פֶּצַע is a wound that draws blood, while חַבּוּרָה is a blow without blood. The Gaon said that פֶּצַע is the breaking of a bone, and חַבּוּרָה is a blow that draws blood.

כויה תחת כויה; even though the examples mentioned here do not involve loss of an entire organ or limb, the principles applying to compensating the victim are based on the same considerations פצע, an injury caused by a lethal weapon such as a sword. וחבורה, a minor injury, such as damage to one of his fingernails.

And when a man strikes the eye of his male slave or the eye of his female slave and destroys it, he shall set him or her free on account of the eye.

את עין עבדו [AND IF A MAN SMITE] THE EYE OF HIS SERVANT — of a Canaanitish servant; but the Hebrew servant does not got free on account of his tooth or his eye having been knocked out by his master, as we have stated in our comment on the passage לא תצא כצאת העבדים (v. 7). תחת עינו [HE SHALL LET HIM GO FREE] FOR HIS EYE’S SAKE — and similarly if he cuts off one of the twenty-four “tips of limbs” viz., the fingers, the toes, the two ears, the nose and the ראש הגויה, the membrum (cf. Mishnah Negaim 6:7). But why, since the precept is not applicable to eye and tooth alone but to twenty-four limbs, are both the eye and the tooth, mentioned? One would have stufficed! Because if only the eye were mentioned and not the tooth also, I might have said: What it the characteristic of the eye? It came into the world together with him! So, too, this law is applicable only to such limbs as came into the world together with him, but not to the tooth, for the tooth did not come into the world together with him. If, on the other hand, only the tooth had been mentioned and not the eye also, I might have said: the law applies even to a case when the master knocked out a child-slave’s tooth which grows again (more lit., which has a substitute) after a time. Therefore the eye is also mentioned to intimate that the law can be applied only when the master knocks out the tooth of his adult slave which, like the eye, does not grow again. (Kiddushin 24b).

"And when a man strikes" — God commanded that the slave go free in place of his eye or his tooth, so that the master not be cruel to strike him a grievous blow; for if he destroys his eye or even his tooth, the slave goes out free from his control and the master loses his money.

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.

לחפשי ישלחנו, “he has to discharge him to freedom.” The Torah’s point here is that the slave does not have the option of accepting a financial settlement for the loss of his limb by his owner. The reason is that such a settlement would be useless to him, seeing that as long as he remains a slave all that he owns belongs to his master. Even a person who has sold himself into slavery with the express condition that his master cannot control his possessions, the master remains in a position that enables him by harassing his slave force him to hand over his belongings to him. The only way this can be avoided is by setting his slave free.

וכי יכה איש את עין עבדו, “And if a man will injure the eye of his slave, etc.” It is a Biblical law that a Canaanite slave is set free if he lost a tooth or eye through maltreatment by his master. The reason is that they became slaves only due to “tooth and eye.” It is written in connection with Cham the father of Canaan (Genesis 9,22) “Cham the father of Canaan saw the nakedness of his father and he told his two brothers outside.” He was first guilty with his eyes by looking and then with his teeth by telling what he had seen.” This is why he was cursed: “cursed be Canaan, the lowest of slaves shall he be to his brothers” (Genesis 9,25). Once the offending organs had been smitten the rest of the body has been released from that curse. Our sages (Kidushin 25) say that the word ושחתה, “and destroys it,” in our verse means that there must have been an intent to destroy that eye or tooth. If the master struck the eye in the process of trying to cure it and the treatment failed and resulted in loss of that eye, the slave does not go free. The sequence of these paragraphs commences with verse 20 which speaks of killing one’s slave intentionally, a very severe sin, progressing to the description of two men fighting in the course of which the Torah discloses the legal status of an unborn baby, a death which is due to a lesser sin than that described in verse 20. This is followed by injury inflicted on Jewish people, i.e. the meaning of “an eye for an eye.” There the Torah speaks about injury rather than death. This is followed in turn by injury caused to a Canaanite slave, the least serious misdemeanor of the list commencing in verse 20. After having dealt with injuries and death caused by human beings, the Torah turns its attention to injuries or death caused by beasts or inert objects. The Torah proceeds in a very orderly and logical manner.

וכי יכה איש את עין עבדו, “if an owner strikes the eye of his slave, etc.’ The Torah speaks of a gentile slave. The legislation pertaining to the destruction of such a servant’s eye formulated here applies equally to 23 other parts of the body enumerated in the Talmud. The reason the Torah chose the eye as the example of the organ whose loss results in the slave’s being freed forthwith, is that when Cham, Noach’s younger son, saw his father in a state of nudity due to his being drunk, instead of covering him he told his brothers i.e. he employed his teeth in doing so. This is why even the loss of a tooth is considered so important by the Torah, (verse 27), as it too is an organ capable of causing serious harm.

תחת עינו, if the victim was a gentile slave.

לחפשי ישלחנו, “he must set him free;” even if he had only knocked out one of his Canaanite slaves’ teeth. According to a Midrash, (asking the rhetorical question) will such a slave really be given his freedom just because he lost as tooth? The answer given is as follows: Cham, the son of Noach was cursed by G–d, [actually his son, seeing that he had previously been blessed by G–d and that blessing could not be nullified Ed.] for having seen his father naked, and having told his brothers instead of covering him. In our verse, the Torah says that if a slave is damaged in his eye or tooth (mouth) he is freed from slavery, just as Cham sinned with his eyes and mouth and was cursed to slavery.

And if he knocks out the tooth of his male slave or the tooth of his female slave, he shall set him or her free on account of the tooth.

"And if a tooth" — Scripture spoke of what is most common, as I noted; and likewise he goes free for the loss of principal limbs, according to tradition.

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.

ישלחנו, he will release him. The expression שילוח, is similar to the when we read in Deuteronomy 24,3: ושלחה מביתו, “he sends her away from his house;” the reason that the word: חנם, “without any compensation is absent here is the reason why the word: חנם “without compensation,” is absent here in our chapter, [as opposed to verse 11 in our chapter, where automatic release of slaves after 6 years service is discussed Ed.], is to teach us that the release must be accompanied by a document just as the document of divorce to a wife. תחת שינו, “on account of his tooth.” The Torah teaches us that even though the master owns the slave bodily, this does not mean that each body part of that slave is his to do with as he likes. G-d did not consent to slaves being owned in order for their masters to be able to mutilate them when they are angry at them. The Torah singling out the word: his “tooth” (sing), teaches that even if the slave lost only one tooth through his being beaten this suffices to his master having to free him unconditionally. In the event that the master had caused the slave to lose an eye, and before releasing him he caused him to also lose a tooth, he will have to compensate him financially for the loss of the tooth, as by that time, halachically, he did not own that slave’s body anymore, even though he was still under his physical control. According to our author, the rule that a gentile slave receives his freedom in return for losing a limb, is arrived at by simple logic. If he gains his freedom at the hands of heaven when he becomes unable through disease to perform his duties, how much more does he qualify for his freedom when he has been abused by a human being owning him. [Rabbi Chavell in his glossaries, cites a statement from the Talmud B’rachot 5 according to which the logic is precisely the reverse, i.e. “if a gentile slave receives his freedom in return for having lost a limb as a result of punishment by his master, how much more so must G-d forgive sinners whose entire bodies have been punished by Him with painful sickness and disease!” This is whatDavid asked for when he said in Psalms 118,18: 'יסור יסרני קה ולמות לא נתנני, “the Lord punished me severely but did not hand me over to the angel of death.” Surely, if someone had to endure man’s inhumanity to man, he would be entitled to his release in exchange.]

And when an ox gores a man or a woman and he or she dies, the ox shall surely be stoned and its flesh shall not be eaten, but the owner of the ox shall be acquitted.

וכי יגח שור AND IF AN OX THRUST — This law applies to an ox as well to any other cattle, wild beast or fowl, but Scripture mentions the ox, because it speaks of what usually occurs (Bava Kamma 54b). ולא יאכל את בשרו AND ITS FLESH SHALL NOT BE EATEN — From what is implied in the words “the ox shall surely be stoned” do I not know that it becomes carrion, and carrion of course is prohibited to be eaten? Why then is it stated, “and its flesh shall not be eaten”? It is to intimate that even if he slaughtered the animal according to regulation after sentence of stoning has been pronounced but before it had been carried out it is forbidden to be eaten. Whence may it be proved that under such circumstances it is prohibited to derive any other benefit from it? Scripture therefore states: “and the owner of the ox is נקי” — it is a phrase such as a man uses to his fellow: that man there has gone away “empty” (נקי) of all his property (he has nothing whatever left), and he has not the slightest benefit of it. This is how the Halachic Midrash explains it (Bava Kamma 41a). However, the real sense of ובעל השור נקי, is what it literally means: the owner of the ox shall be guiltless. Because Scripture says with reference to the מועד (an ox which inflicted injury three times in succession, and about which its owner must therefore be regarded as forewarned), (v. 29) “and his owner also shall be put to death”, it was forced to state with regard to the תם (a hitherto innocuous animal, having inflicted an injury for the first time) “the owner of the ox shall be guiltless”.

"And when an ox gores" — This passage is mentioned because of the subsequent case: if an ox gores a male or female slave. This man and woman are Israelites. Scripture mentioned the woman even though it did not do so in "one who strikes a man and he dies" (v. 12) — because it is the way of language to mention the more distinguished one, the male, and the law applies equally to the female. Now Scripture mentions the woman, because there are places where it is not the woman's custom to go outside the city to the field where oxen are found — lest one think this and object, saying why did she deviate from custom? For this reason it is written afterward: "whether it gores a son or a daughter" (v. 31) — for the law of one who is struck by a man applies equally whether he is old or young. And it mentioned the son and daughter who are minors, so that the owner of the ox cannot argue against the parents that they should have watched over them. — "The ox shall surely be stoned" — the reason "its flesh shall not be eaten" is unlike the case of a carcass (נְבֵלָה), which a stranger at the gate or a foreigner may eat; our early authorities said that wherever it says לֹא יֵאָכֵל (it shall not be eaten) it is forbidden in all benefit. — "And the owner of the ox is clear" — of punishment.

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.

וכי יגח שור את איש, “when an ox gores a man, etc. up until this point the Torah had listed a number of situations when a human being had inflicted pain or loss of life; now it turns to damages caused by animals under the control of human beings, or property owned by human beings and not secured against causing damage to his peers. וכי יגח שור את איש, the expression: נגיחה is used when an ox gores a human being, whereas the expression: נגיפה is used when said ox gores another animal. The reason is that the fate of a human being is influenced by his mazzal, the astrological constellation of the stars when he has been born, and as a rule animals fear human beings (Genesis 9,2) so that even when they gore they take care not to inflict death. Animals do not enjoy this advantage and therefore when one animal is being gored by another animal this is generally fatal. (Compare Rashi on Talmud Baba Kamma folio 2) סקול יסקל השור, “the offending ox is to be stoned to death. If you were to ask that if even an ox that did not have a history of goring people is subject to stoning, why did the Torah have to tell us that an ox with a history of goring has to be stoned? (verse 29) Answer: this is faulty logic; the reason why a hitherto tame ox is stoned is because no penalty of compensating the victim is imposed on the owner;I could think that seeing that the owner of an aggressive ox that has killed a human being would not have to be stoned. To make sure that we do not think so, the Torah added that the guilty ox has to be stoned in all such situations. You might also ask that how can it happen that an ox will gore people twice or even three times, i.e. become labeled: “an aggressive ox” מועד, if he had been stoned to death already after the first time he killed a human being? Answer: either such an ox had escaped after it gored the first time, or, that whereas we know the ox but did not know who its owner was so that we could have accused him of deliberate negligence. ולא יאכל את בשרו, “and its flesh may not be eaten.” Is it not clear from the fact that this animal had to die through stoning that its flesh would be forbidden, seeing that only animals that have been killed by ritual slaughter may be eaten? The expression יאכל in the passive mode, always means that it is not only forbidden to be eaten by Jews but may neither be fed to dogs or sold to gentiles. ובעל השור נקי, and the owner of that ox remained free of guilt as long as his ox had not displayed signs of being aggressive. (Rash’bam)

וכי יגח שור את איש, “If an ox shall gore a man or a woman, etc.” the Torah employs the term נגח when speaking of an injury or death caused by an ox attacking a human being, whereas when describing two beasts fighting each other the word used is נגף, “pushed with the body” (compare verse 38). The Talmud Baba Kama 2 explains that seeing the fate of a human being is influenced by horoscopic influences as well as through supervision by celestial forces of his individual fate, the Torah uses an expression indicating intent, whereas when beasts fight each other, seeing that their individual fates are not subject to such celestial influences the Torah is content to describe what happened as a result as a mere unintentional push. סקול יסקל השור, “the ox will be stoned to death.” The death penalty administered to the ox is not punishment for the ox but represents punishment for its owner who was guilty of negligence by not having guarded the beast so that it could not be a hazard to humans. The owner must be warned that negligence will cost him dearly. This, at any rate, is the opinion of Nachmanides. There is another approach to this stoning of the ox (the author does not attribute it to a specific scholar) which holds that any ox or other beast or bird even, which kills a human being did so only as it had absorbed some of the lethal powers of the original serpent which was bent on causing death to man. This is the reason we find that the sages compared the plague of pestilence (a deadly plague) to the goring of an ox as we learned at the beginning of Tractate Taanit (folio 19). We have been told there that: “if three people die on the same day this is not an indication that the pestilence of plague is raging. If three people die on three successive days however, this is an indication that the pestilence of the plague is raging.“ (The halachic consequence is that people in that town must congregate in prayer to implore G’d to bring the pestilence to a halt). The law about how do deal with an ox which has gored is also connected with the dates on which this occurred. If the same ox has gored three people on the same day we do not consider that it has lost its status as a tame beast. If it has gored one person each on three successive days it has become a dangerous beast and the owner has to take extraordinary precautions to prevent this happening again. This is the meaning of the words in verse 29 “if this ox has gored yesterday and the day before.” This is the opinion of Rabbi Yehudah. Rabbi Meir does not agree with this kind of logic. He feels that if an ox which only killed at intervals of at least 24 hours is subject to stoning, an ox which goes on a rampage on the same day must most certainly be stoned. In spite of what sounds like sound logic, the halachah has been determined according to the view of Rabbi Yehudah (Maimonides Nizkei Mammon chapter 6 halachah 1). A further observation about the behaviour of oxen is made in Pesachim 112 based on a verse in Ezekiel. The Talmud there says that in the month of Nissan oxen have Satan dancing between their horns. It is well known that the ox derives its physical strength from the attribute of Justice. This is what Ezekiel 1,10 referred to when he described it in his vision. The face of the ox in that vision is described as being on the “left”, i.e. the traditional side assigned to the attribute of Justice. Berachot 27 relates an incident in which a rooster which had killed a human being was stoned to death by order of the court. The reason our verse mentions an ox is that oxen are the beasts most likely to cause death of humans through goring. The legislation is certainly not restricted to oxen. It is well known that in the period of the Talmud Satan was a very visible demon, so much so that eventually people implored G’d to have mercy and to conceal Satan from their eyes (compare Kidushin 81)

סקול יסקל השור, according to the plain meaning the offending ox will be stoned to death. ולא יאכל את בשרו; not only may its meat not be eaten by a Jew, but not even by a gentile or a dog; it is completely forbidden to be enjoyed by anyone. This is in spite of the fact that normally, when the animal of a Jew has died of natural causes or has been found ritually unfit for consumption, the Torah permitted the meat of the carcass to be either sold to a gentile or given to him as a gift or to be fed to one’s dogs (Deuteronomy 14,21 and Exodus 22,30), such animals are permitted even after they had died through stoning. [seeing that had not killed a human being. Ed.] Our sages derive from this verse that after judgment had been handed down that the animal in question is to be stoned to death, slaughtering it ritually will not make it fit for consumption or other beneficial use to the owner. (Baba Kamma 61). ובעל השור נקי, as long as the offending animal had not been classified as a dangerous animal, putting an additional onus to guard it properly on its owner.

סקול יסקל השור, “the (offending) ox must be stoned to death.” Rashi claims that from the words above we would not know that its flesh would be prohibited as food. This sounds very strange, seeing that it has not been killed by ritual slaughter, it is what is known as neveilah, and all animals that died other than by ritual slaughter are automatically forbidden to us as food. What did Rashi think that the words: “its meat must not be eaten” was needed for? It could be needed for a situation in which the ox in question had been ritually slaughtered after being convicted to die by stoning, before the decree could be carried out. In that event our verse insures that it will not allow the guilty party to circumvent the court’s decision, seeing that ritual slaughter could not be carried out on a dead animal. If you were to say that the prohibition here refers to the fetus found inside an animal that had been ritually slaughtered and was either close to be born, and comes out alive, or it had been carried for the full term of pregnancy and was dead, and the Torah decreed that ritual slaughter of the mother was not sufficient to permit this ben pekuah to be eaten, as is, it is considered as having died from natural causes and therefore cannot be eaten, the words לא יאכל, teach that it must not only not be eaten, but no other use may be made of it either.

But if the ox was a gorer from yesterday and the day before, and its owner was warned yet did not restrain it, and it kills a man or a woman — the ox shall be stoned, and its owner as well shall be put to death.

מתמל שלשם [BUT IF THE OX HAS BEEN WONT TO THRUST] YESTERDAY AND BEFORE YESTERDAY — Here you have including the present occasion the three times an ox must gore before it can be declared a מועד (Bava Kamma 23b). והועד בבעליו AND IT HATH BEEN TESTIFIED TO HIS OWNER — הועד (from the root עוד) is an expression for warning through witnesses (Bava Kamma 24a), as in, (Genesis 43:3) “the man hath solemnly forewarned (הָעֵד הַעִד) us”. והמית איש וגו׳ BUT HE HATH PUT TO DEATH A MAN [OR WOMAN] — Since it states, (v. 28) “If an ox gore (יגח) [a man or a woman, that he die]” I might say that I have only the law dealing with the case that it kills by pushing him with the horn (the root נגח being mainly used of thrusting with the horn, cf. e .g., Deuteronomy 33:17) but whence can the law be derived that it applies also to the case where it kills by biting, thrusting, or kicking? Scripture therefore states “he hath put to death [a man or a woman]” thus intimating that so long as death is caused by the animal it is liable to stoning. וגם בעליו יומת AND HIS OWNER ALSO SHALL BE PUT TO DEATH by a visitation of God. You might perhaps think he shall be punished by human agency (the judges)! Scripture, however, states, (Numbers 35:21) “he that smote him (a human being) shall surely be put to death; for he is a murderer” — the force of these last words is to intimate that for a murder committed by himself you shall put him to death (i. e. he suffers death by human agency as is the law regarding a murderer), but you shall not put him to death on account of a murder committed by his ox; this must be left to God (Sanhedrin 15b; cf. also Mekhilta).

AND ITS OWNER SHALL BE PUT TO DEATH. Our Rabbis have received by Tradition that this death means by the hand of Heaven. Similar cases are these verses: and the common man that draweth nigh shall be put to death; and they die therein, if they profane it. I have noticed that where the Torah speaks of those liable to be put to death by the court, it does not mention just yumoth (he shall be put to death), but always says, moth yumoth (he shall surely be put to death). Do not object to this rule from the verse, and he that killeth a man ‘yumoth’ (shall be put to death), or from the verse about the Sabbath, or a prophet who misleads, for in each of these cases He has already clearly explained elsewhere about them [that they are liable to death by the court, by using the phrase: moth yumoth].Now I do not know the reason for Onkelos’ rendering yumoth as yithk’teil [“he shall be killed”, which indicates that his death is to be by the court, instead of by the hand of Heaven]. Perhaps his intention is to state that the owner, [who had been previously warned that his ox had gored three times, but still did not guard it, so that it went out and killed a man or woman], deserves to be put to death, but is instead made liable to the payment of a ransom. Or perhaps Onkelos means to explain that that which Scripture states, and its owner also shall be put to death means that the owner will perish in a similar manner to that by which the gored person was killed, for his day shall come to die, or he shall go down into battle, and be swept away; the Eternal will not hold him guiltless. Thus Onkelos wanted to teach us that the owner of the ox is liable, according to the view of Heaven, to die by the hand of a killer, and not by a natural death, something like it is said, and I will kill you with the sword. In the verse, and the common man that draweth nigh shall be put to death, Onkelos also translated yumoth as yithk’teil [“he shall be killed,” indicating that his death is to be by the court], because he agrees with the opinion of Rabbi Akiba who said that a non-priest who performed the Divine service in the Sanctuary is put to death by strangulation.

"But if" — There is no doubt that there is no monetary ransom for those sentenced to death by the court. Therefore, those who transmit the tradition said that "and also he shall be put to death" (וְגַם בְּעָלָיו יוּמַת) means death at the hands of Heaven. Thus, in my view, "he shall be put to death" here is like "eye for eye" — meaning he is deserving of death unless he pays the ransom for his life. All of this is because the text says יוּמַת ("shall be put to death") and not יָמוּת ("shall die").

וגם בעליו יומת. A reference to judgment by heaven which will be exacted from the guilty party if we cannot convict him due to lack of witnesses.

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.

וגם בעליו יומת, “and also its owner is guilty of the death penalty by execution.” According to the plain meaning of the text he should be executed in practice, seeing that he was aware of allowing a dangerous animal to be on the loose, and he took no precautions.

והמית איש או אשה, “and it kills a man or a woman, etc. “ According to Pessikta Zutrata on our verse, these words are redundant in connection with the immediate subject at hand. They are therefore available to serve as a basic premise that just as there is no difference in the treatment of man and woman if either has been gored by an ox, neither does Jewish law make a distinction between men and women in other instances of woman sustaining death or injury. Although nowadays (since the Jews were exiled to Babylon) we do not have the authority to impose financial penalties, if someone who was wronged (injured) compensated himself by seizing property belonging to the guilty party our local courts do not reverse what the injured party has done. Our sages in Baba Kama 30 relate a list of anecdotes describing how careful various Talmudic scholars were to ensure that their property (inert) could not accidentally become the cause of injuring people. They buried plowshares 3 feet underground, were very careful that discarded shards should not pose a hazard to anyone, etc. Deut. 22,8 (in connection with the fence on one’s roof) states “in order that you do not place blood in your house,” as the basic warning not to become guilty of damage or injury through inadvertence. A certain individual was observed throwing stones which he did not want anymore from his house into the public domain, the street. An old man accosted this individual challenging him why he threw refuse from a place which was his own to a place which was not. The offender replied sarcastically: After some time had passed the offending individual found himself in financial straits and had to sell his house. He tripped over the stones which he had thrown out sometime earlier. He then remembered the words of the old man who had scolded him at the time and now he acknowledged that the reproof had been in place. The story is an illustration of what Solomon said in Kohelet 12,1: “remember your Creator in your youth.” וגם בעליו יומת, “and also its owner shall die.” The word יומת here does not refer to execution of the owner by a human tribunal. Our sages, (Sanhedrin 15) in interpreting the word conclude that a man is executed for murder of a human being not for the killing committed by his ox. The penalty referred to in our verse is known as מיתה בידי שמים, “death at the hand of heaven,” i.e. premature death of the owner in question. The expression used for the death penalty of the guilty owner is the same as in Numbers 18,7 “and the stranger (non-priest) who enters holy precincts will die.” Sanhedrin 83 makes clear that what is meant is death at the hands of G’d.

וגם בעליו יומת, “also its owners shall be executed.” This execution would be at the hands of heaven, not by human tribunal. [clearly, the owner could not have been warned of what his ox was going to do and that he would be executed if he did not prevent it so that legal proceedings against him would result in a death sentence. Ed] Nachmanides writes that he cannot follow the translation of Onkelos who takes the text decreeing execution of the ox’s owner literally. He speculates that possibly Onkelos meant that the owner deserves to be executed. Instead, the Torah, in this instance, provided monetary compensation to be paid by the owner. Alternately, what Onkelos meant to say was that this owner, when the day would come when he was meant to die, would die a violent death instead of dying from natural causes. In other words, by his negligent conduct with this aggressive ox he made himself liable to G’d’s direct intervention in causing his death.

וגם בעליו יומת, by heavenly forces as opposed to by human tribunal. If the owner did make restitution of monetary kind he is not guilty vis a vis heaven either.

ואם שור נגח הוא, “but if that ox had had a history of goring people, (and its owner had not taken proper precautions);“ The Talmud, tractate Baba Kamma folio 23, relates a dispute between two scholars, Abbaye and Rava whether the term נגח applies to an ox that already gored twice or whether even after having gored once, that animal belongs to the category of being potential a killer, and its owner being guilty of not having protected potential victims properly. The subject of their dispute is the meaning of the word תמול, usually understood to mean “yesterday.” According to the former scholar, even a single incident of goring suffices for the ox to be categorised as dangerous, and the prefix מ i.e. מתמול, would refer to the second offense by that ox, so that the words ולא ישמרנו, “and its owner did not watch it adequately,” would make him liable to stoning only the fourth time whereas according to the second scholar, basing himself on the word שלשום, “day before yesterday,” that ox’s status did not change from harmless to dangerous until after it had gored three times. According to Rava, the words ולא ישמרנו, would then mean that only after a third such occurrence did this ox change its category, and its owner became guilty on an additional count According to the Talmud in tractate Baba batra, folio 28, such an ox is subject to stoning only after it has gored the fourth time. seems therefore that Abaye found four sources in the Torah’s text supporting his view whereas Rava found only three. If you were to ask what difference this makes, [after all we do not decide questions of halachah on the written text of the Torah, but use it only as broad hints, Ed.] Rabbi Ezra hanavi claims that there is a difference. The difference would be if the fourth goring had occurred on the same day as the third goring. According to Abbaye, if the last goring would have occurred on the same day as the previous one, the owner as well as his ox would not be held liable for the additional negligence, as the owner on a day when his ox was bad-tempered had not yet had time to place him under secure restraint.

If a monetary payment is imposed upon him, he shall give as ransom for his life whatever is imposed upon him.

אם כפר יושת עליו WHEN THERE BE SET ON HIM A RANSOM — This אם is not conditional (i. e. it does not mean “if” the heirs feel inclined to set on him a ransom) but it has the same meaning as in (Exodus 22:24) “When (אם) thou lendest money” where it has the meaning of אשר, “when” (for it is a duty to lend money to the poor and it is not optional). It is the law regarding him that the court should set on him a ransom. ונתן פדיון נפשו HE SHALL GIVE THE RANSOM OF HIS SOUL — the value of the injured person; this is the view of R. Ishmael, R. Akiba, however, says that it means the value of the person who caused the injury (Mekhilta).

IF THERE BE LAID ON HIM A RANSOM, THEN HE SHALL GIVE FOR THE REDEMPTION OF HIS LIFE WHATSOEVER IS LAID UPON HIM. Since the redemption is a form of atonement as are the offerings, and if the owner does not desire it we cannot force him to come before the court to impose the ransom on him, and even if the court ordered him to pay it, we cannot seize his goods as security, therefore He said: “if.”

"If a ransom is imposed upon him" — this does not contradict "you shall not take ransom" (Num. 35:31), for there it is a full-fledged murderer, whereas this one did not murder — he is only penalized because he did not guard his ox by keeping it tied, or the ox freed itself because it was not bound properly, or he did not find the gate closed and so it went out and caused damage. — "It shall be imposed upon him by the judges."

אם כופר יושת עליו, if witnesses testify in a manner that enables the court to apply the laws of compensation as a means of atonement.

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.

אם כופר יושת עליו, in the event that the heirs of the person who had been gored to death are willing to accept a financial settlement for their father having been killed; ככל אשר יושת עליו, “the owner must pay whatever is imposed upon him.” The reason that the Torah does not apply the principle that we do not accept financial compensation for killing human beings, is that that this rule applies only if the human being in question has personally committed such an act. [The reason that this verse begins with the word: “if”, is that most people would spurn such an offer by the party who was responsible for their father’s death.” The word אם, “if” here, does not belong to the list that the author had made when this word is not an option. (Compare Exodus 20,22)

אם כופר יושת עליו, “if a ransom payment has been imposed upon him,” the word אם in this instance is not a conditional word, i.e. “may be yes maybe no,” but describes the duty of the court to assess such financial damages. The word אם therefore means either “when,” or as “soon as.” The word כופר means atonement wherever it appears. Payment of the fine constitutes atonement for the owner. The atonement is similar to that achieved by presenting a sin-offering where the owner paid for the animal in question. The principal atonement is a matter for heaven; the owner is not forced to appear before a court in order to be assessed damages, nor, after damages have ben assessed and he has failed to pay them is his property seized to enforce the court’s judgment (compare Ritva on Makkot 2). ונתן פדיון נפשו ככל אשר יושת עליו, “and he is to pay a redemption for his life in accordance with what has been assessed against him.” This teaches that if the owner of the goring ox has paid the judgment he is no longer subject to death at the hands of G’d. We base this also on Job 33,24: “redeem him from descending to the Pit, for I have obtained his ransom.” This is the law whenever someone is guilty of death at the hands of G’d such as this individual who has not committed murder or even manslaughter, but has merely been the indirect cause of death of a human being through his negligence. When a person has killed with his own hands, (directly) there is no provision for his guilt being wiped out through a ransom payment. This is what the Torah meant in Leviticus 27,29 אך כל חרם אשר יחרם מן האדם לא יפדה מות יומת, “but any condemned person who has been banned from mankind shall not be redeemed, he shall be put to death.”

אם כופר יושת עליו, “If monetary atonement be assessed against him, etc.” The introductory word “if” presents a problem; what is “iffy” about this? The matter is similar to the atonement for sins obtained through the offering of a sin offering for instance. When such an offering has been legislated by the Torah, the court does not send enforcers to see to it that the party obligated to offer it does so. If he does not, he will not attain atonement. Similarly, in the case of the owner of the ox. If he fails to pay the assessment he remains out of grace with his Creator, but the court does not check if he has in fact made the payment decreed by the court. This is why the Torah prefaces the legislation with the word אם.

Whether it gores a son of Israel or a daughter of Israel, this same law shall be applied to it.

או בן ינח WHETHER HE HAVE THRUST A SON — a son who is a minor; או בת יגח OR HAVE THRUST A DAUGHTER, who is a minor. Since it states, (v. 29) “and hath put to death a man or a woman”, one might think that the owner is liable only for the death of adult persons, Scripture therefore states, “whether he have thrust a son etc.” to make him liable for the death of minors equally as for that of adults (Mekhilta).

O’ (OR) HE HAVE GORED A SON, OR HAVE GORED A DAUGHTER ACCORDING TO THIS JUDGMENT SHALL IT BE DONE UNTO HIM. Scripture uses the word o (‘or’ he have gored a son), because it adds to a phrase mentioned above, the meaning of the whole phrase thus being: “and he hath put to death a man or a woman, or he have gored a son, or have gored a daughter, one ordinance shall be for them.” Some scholars say that the word o comes in the place of im (if). Similarly: ‘o’ (if) it be the carcass of an unclean beast; ‘o’ (if) I had dealt falsely against mine own life; ‘o’ (if) it be known that the ox was wont to gore. There are many such cases, in the opinion of these scholars. But all these proofs are false witnesses; you will understand them all in their context. According to our Rabbis, Scripture had to detail the ordinance [in the case of an ox goring] minors, because it found it necessary to say above, And if an ox gore a man or a woman, — in order to teach us that in all laws of the Torah concerning damages G-d has treated woman equally to man — thus I might have thought that one is only liable in the case of a grown man or woman; therefore Scripture says, or he have gored a son, to make him liable for the death of minors as for that of adults. The same method was followed by Scripture in the verse, And he that smiteth any man mortally shall surely be put to death, as Rashi explained there. In line with the plain meaning of Scripture, [the ordinance concerning an ox goring minors is stated] because an ox that kills a grown-up person is extremely vicious, as a bear robbed of her cubs in the wilderness, thus if warning hath been given to its owner, and he hath not kept it in, he has committed a grave transgression, and deserves to be liable to death or to pay a ransom [for the redemption of his life]; but an ox that kills minors is not so vicious, for most oxen are not afraid of them, and one might therefore think that their owners are not liable [to the same punishment], therefore Scripture states that according to this judgment shall it be done unto him.

"Whether a son or a daughter" — both Israelites, as it is written afterward: "if it is a slave" (v. 32). God placed punishment on the owner of the ox because it is grave in His eyes that an animal should kill a human being made in the image of God — therefore the ox is stoned.

אם בן יגח או בת, “if it gores a son or a daughter;” it is most unusual for the Torah to spell out separately that the victims are either man or woman, or son or daughter; (Compare verse 28). Why did it do so here? The reason is that the owner of the ox could have argued that if the father or mother of the child who had been killed had taken care of their son or daughter these would not have been where the animal could have attacked them with impunity. The Torah had to inform us that such an excuse by the owner of the ox which had killed is absolutely irrelevant. A different explanation: when the Torah speaks of free people, the status of minors and adults is exactly the same. (Talmud Baba kamma folio 43) when the victim of this ox was a slave, the owner of the ox is liable only if the victim was an adult.

או בן יגח או בת יגח, “whether it gores a boy or a girl, etc.” Seeing that in verse 28 the paragraph commenced with the words “if an ox gore a man or a woman,” the Torah adds that even if the victim of such a goring was a minor the same law applies.

או בן יגח או בת יגח, “whether it gores a boy or it gores a girl, etc.” The Torah considers the death through an owner’s negligence of a minor as just as serious as the death of an adult. The reason why we needed a specific verse for this legislation to be spelled out is that when an ox kills a man it is as if a bear enraged through the loss of one of its young goes on a rampage, i.e. disregarding danger to itself. On the other hand, I might have thought that when an ox gores a minor this was not such a serious departure from its normally tame behaviour that the owner forthwith has to guard it with all the means at his disposal. The Torah therefore informs us that any animal which kills any human being, even a minor, has changed its status to becoming a שור מועד, an aggressive ox, with all that this implies for the precautions its owner has to take to neutralize it as a source of danger.

If the ox gores a male slave or a female slave, he shall give thirty silver selas to the owner, and the ox shall be stoned.

אם עבד או אמה IF [AN OX SHALL THRUST] A MANSERVANT OR A MAIDSERVANT — Canaanitish servants (Mekhilta). שלשים שקלים יתן HE SHALL GIVE THIRTY SHEKELS — This is the enactment of Scripture (and no reason is given) — the indemnity shall be thirty shekels whether the slave was worth a thousand zuz or was worth no more than one denar. A shekel weighs four gold coins, making half an ounce according to the correct weight of Cologne.

כסף שלושים שקלים, equivalent to the monetary value set by the Torah on a woman in her prime (between 20-60) The comparison reflects the part of Torah legislation that must be observed both by Jewish women and gentile male slaves.

אם עבד יגח השור, “if the ox had gored a slave, either a male of a female slave, (which had already been legally labeled as an aggressive ox) this latter point is clear without having to be spelled out, otherwise killing a slave would be rated as a more serious offense than killing a free man. כסף שלשים שקלים, the compensation payable by the ox’s owner to the owner of the slave is to be 30 shekels. This corresponds to the value of a free woman between the ages of 20-60 years of age as stated in Leviticus 27,4. והשור יסקל, “and the offending ox is to be stoned to death.” This is the only way we can be sure that it will not at some time in the future also gore a free man. Seeing that it is customary for the slaves to be looking after the master’s livestock, feed them, etc., it is not a rarity that sometimes an animal turns on its keeper. This will lead to arguments between the owner of ox and the master of the slave as to how much the dead slave was worth. In order to forestall such arguments, the Torah spelled out a fixed amount for all such situations. Seeing that the chances that a free man becomes the victim of such an ox are statistically quite insignificant, the Torah uses a different yardstick in evaluating the damage.

אם עבד יגח השור או אמה, “if the ox gores a male or a female slave, etc.,” this again refers to Canaanite slaves; כסף שלושים שקלים, “thirty silver shekels.” This is a fixed amount irrespective of the market-value of the slave in question, even if he is a pearl-stringer, or even one who is inflicted with a skin disease.

אם עבד, a gentile slave יגח השור, the one whose owner had been warned concerning the danger this animal represented (מועד). If the ox did not have any strikes against it but was a תם, its owner is not liable for damages.

שלשים שקלים, “thirty shekel.” This is an arbitrary amount determined by the Torah, as clearly the value in terms of ability to perform work varies from person to person. We already have a hint of this on the first occasion when the Torah ever mentions a “slave,” in Genesis 9,25, where the Torah writes, concerning Canaan, son of Cham that he is to be a slave to slaves, and the extra word יהיה, “he will be,” is added there. The numerical value of that word is 30, as if to tell us that this is a fixed amount regardless of the physical strength of that servant.

And when a man opens a pit, or when a man digs a pit and does not cover it, and an ox or a donkey falls into it —

וכי יפתח איש בור AND IF A MAN SHALL OPEN A PIT which was covered over, and he now uncovered it. או כי יכרה OR IF A MAN SHALL DIG [A PIT] — Why is this stated? If he becomes liable for opening one that already exists how much the more is he liable for digging a new one! However, it does not mean that he digs a pit from beginning to end but it is intended to include in this law a person who digs after another has dug (i. e. who deepens to a height of ten handbreaths a pit which another has already excavated to a depth less than this. Before he did this an animal which fell into the pit was unlikely to kill itself; now, however, such a fall may prove fatal) — that such a one alone becomes liable (cf. Bava Kamma 51a). ולא יכסנו AND SHALL NOT COVER IT — if, however, he did cover it, though he did not fill it in with earth” he is not liable (Bava Kamma 50a). Scripture speaks of one who excavates a pit in a public thoroughfare (cf. Bava Kamma 49b). שור או חמור AN OX OR AN ASS — This is the law also with respect to all cattle and beasts, because wherever the Torah prescribes something with regard to “ox or ass”, we derive it (the fact that it applies to all cattle and beasts) on the grounds of the verbal similarity of שור in the text in question with שור which occurs in the law prescribing the Sabbath rest, for — with regard to the latter — it is stated, (Exodus 23:12) “that thine ox and thine ass may rest”. Now how is it in the latter case? We know that all cattle and beasts are to be treated in this respect as the “ox”, because in another passage referring to Sabbath (Deuteronomy 5:14) it is expressly said “[thy ox and thy ass] and all thy cattle”! So here, too, all cattle and beasts are to be treated as the ox. The only reason why ox and ass are alone mentioned is to imply: “an ox” — but not a man, “an ass” — but not vessels (Bava Kamma 53b).

"And when a man opens a pit" — one that was already dug. Scripture mentions this because God does not desire that an animal die needlessly, without serving human need; and furthermore, it causes harm to the animal's owner.

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).

וכי יפתח איש בור, If a man opens the lid over a pit (which had been placed there to protect pedestrians); the Torah refers to a pit which had remain fully covered for a long time, or even if that person had a dug pit which had never been in that place, and he had not bothered to cover it because he intended to dig deeper on the following day; ולא יכסנו, “and he fails to cover it.” If he had covered it, he is free from further responsibility, provided that he covered it securely. The term “securely” is applied to a cover strong enough to prevent a wagon loaded with stones from collapsing the cover. (Jerusalem Talmud Baba Kamma 5,7) One is not permitted to dig a hole underneath the public streets unless wagons loaded with stones can cross above it without concern. ונפל שמה שור, “and an ox falls into it.” Human beings, seeing that they have been given a brain by G-d, are expected to look where they are going, and if they come to harm due to not looking out for themselves, the person causing the obstacle is not held responsible. [How different from our time when people try to sue the city for potholes on the sidewalk! Ed.] The Torah adds here the word: או חמור, “or a donkey,” to tell us that if people‘s belongings fall into that hole, the person who dug it is also not responsible as these belongings must have been guarded by a human being who did not do his job properly. (Talmud Baba Kamma, folio 53) An alternate explanation: Oxen and donkeys are mentioned here as they are the most likely animals to fall into such a hole. What applies to them applies to all other animals also.

או כי יכרה איש בר וגו', “or if he digs a pit.” The word for “pit” here is spelled without the customary letter ו, the only instance in the Torah when it is spelled in this manner. The reason is that the Torah implies that even if the digger of this pit dug far less that the minimum depth required for the pit to become a lethal hazard, (10 tefachim, 40 cm) it is the last such tefach which makes him liable for the consequences, even if he had only deepened an existing pit by a single tefach. The sages rule that in such an event it is also the last digger who is responsible for the damages caused. (Baba Kama 51)

וכי יפתח איש בור, one which was already deep enough to cause fatal harm to animals when not covered; when the owner deepened it further, his sin being that he did not cover it to render it harmless. כי יכרה איש בור, or even if the man in question only digs a hole and fails to cover it at the end of the day, seeing he did not complete it until the following day, and he considered it too much bother to put a temporary cover on it pending his completing his excavation, he is held responsible for any damage thus caused.

ונפל שמה שור, “and an ox falls into that pit;” (because it was not covered); Rashi explains that the Torah chose the ox as an example which applies to all other domestic animals also. Wherever the word שור occurs in the Torah, it serves as an example applicable to other domestic animals. When both שור and חמור, “ox and donkey” are mentioned, what is meant is “an ox as opposed to a human being,” and the word חמור, donkey, is meant to be contrasted with “inert vessels.” If you were to argue that the word שור at least once, is needed in order to establish its connection to the Sabbath laws where the Torah wrote in Exodus 23,12 that “your ox must rest on the Sabbath,” the answer is that unless we were to deduce from the repeated use of these types of animals and no others that they were meant to exclude human beings and inert vessels from the respective legislation under discussion, the Torah did not have to use either example, and simply write that something will fall into the pit, without listing any example. If this is so, i.e. that the word ונפל, “it falls,” includes both ox, donkey, etc.; just as these words do in connection with the Sabbath rest to be observed by the possessions of a Jew on the Sabbath, the words “ox” and “donkey” are available for teaching us additional rules. Nonetheless, it is still difficult to understand why the Torah chose as its examples animals and not human beings that would fall into the pit of which our verse speaks. This can be deduced from the words: והמת יהיה לו, “and the carcass will be his;" i.e. he who owned this animal while alive is permitted to make use of its carcass other than consuming it. This makes clear that the owner of the offending animal is not permitted to make any use of the animal or vessel his ox had killed or destroyed. This has been pointed out already in the Jerusalem Talmud in connection with a different problem, namely if an owner of a Canaanite slave who has not yet been circumcised and undergone immersion in a ritual bath, is permitted to start working for his owner. The reason why the dead animal is forbidden to be made any use of is derived from Deuteronomy 21,1 where the subject of the heifer that is killed as symbolic atonement for the people in whose vicinity an anonymous person had been murdered, their declaring that he had not been denied food or shelter in their town. In that verse the Torah uses the apparently unnecessary word שם, “there,” as it does in connection with the death of Miriam in Numbers 20,1. The rabbis conclude from these two unnecessary words, that just as a human carcass is forbidden to be made any use of, so it is forbidden to make any use of the carcass of the heifer discussed in Deuteronomy 21,4. [This editor does not understand why the author ever assumed that a human being could have served as the example in our verse, as when a human being falls into a pit the person who had failed to cover it is not responsible, as human beings have been given eyes to see with and a brain to use to watch where they are going.] (Compare Rashi, who contrasts שור with אדם, i.e. no compensation is payable for human beings who fall into the pit.] The Talmud in tractate Avodah zarah folio 29, quotes the school of Yannai as saying that the reason why such making use of the dead is prohibited, is that death is associated with atonement, i.e. כפר לעמך ישראל, “grant atonement for Your people of Israel,” [so that they will regain their status as being holy, Ed.] and just as something holy must not be used for a secular use, so also the dead who have achieved forgiveness through having died, and have recaptured their former status as innocent holy beings.

the owner of the pit shall make restitution; he shall return silver to its owner, and the dead animal shall be his.

בעל הבור THE OWNER OF THE PIT [SHALL PAY FOR IT] — This means the one who occasioned the damage. Although the pit was not his, — for he dug it in the public thoroughfare, — Scripture regards him as its “owner” (בעל הבור) in so far that he becomes responsible for the damage caused by it. כסף ישיב לבעליו [THE OWNER OF THE PIT SHALL PAY FOR IT] AND RESTORE MONEY UNTO THE OWNER OF THEM — The word ישיב is apparently redundant; it would have sufficed to state ישלם כסף לבעליו but it is added to include as legal tender in this case even bran (i. e. the restitution need not be money so long as he actually restores something of money-value). (Bava Kamma 7a). והמת יהיה לו AND THE DEAD BEAST SHALL BELONG TO HIM — to him who has suffered the loss. We assess the value of the carcass and he (the claimant) takes it at this value in part payment, and the man who caused the damage pays him in addition to this as much as will make up the whole loss he has suffered (Bava Kamma 10b).

AND THE DEAD BEAST SHALL BELONG TO HIM — “to the one who suffered the damage. We make an estimation of the value of the carcass and he takes it in part payment and the one who caused the damage, [the owner of the pit], pays him in addition as much as makes up the value of his damage.” This is Rashi’s language. But he did not explain the law sufficiently. For there is no need for Scripture to tell us concerning this carcass that the one who suffered the damage must take it in part payment, when he brings it before the court to collect his damage; for even if the one who caused the damage had other carcasses that were carrion, or flesh that was treifah in his possession, he can give it to him in part payment, it being already established that restitution for damages need not be in money, but may “include anything of value, even bran.” Rather, the meaning of the verse is to state that the carcass belongs to the one who suffered the damage and is considered his property; therefore if its value decreased after the damage was caused, or it was stolen, the one who caused the damage, [the owner of the pit], pays only the loss in value caused by the death of the animal. Thus if the ox that was killed was worth when alive one hundred zuzim, and upon its death became worth fifty, the one who caused the damage is liable to pay only fifty zuzim, and the other attends to his carcass [removing it from the pit], and keeps it for himself. This law applies to all damages, and it is what the Sages call: “the loss in the carcass’ value,” and is explained in the Gemara.

"The owner of the pit" — the one who opened or dug it, even if it is in the public domain, since he made it for his own purpose; therefore he is called "owner of the pit." — "He shall pay silver to its owners" — giving the value of the fallen animal while it was alive, after deducting the value of the carcass.

בעל הבור, “the one responsible for that hole;” this cannot refer literally to the owner of the land on which the hole has been dug, but must refer to the one who created the hazard on it. The owner of the land, if not the same, is completely free from responsibility. והמת יהיה לו, “and the carcass will belong to the person who caused the damage,” as seeing he has paid full damages this is only fair. (This is the plain meaning of the verse, not necessarily the Talmud’s, there being a debate about who is the subject of the word: לו, “his”)

בעל הבור, either the one opening a pit which had been covered, or the one having excavated a pit and not completed it is considered by the Torah as בעל, its owner, in a negative sense, i.e. responsible as if he were the owner for any damage he caused. והמת יהיה לו, but the carcass of the animal for which he pays compensation is his, seeing he had fully compensated its owner. However, our sages interpret the verse to mean that the carcass of the animal remains the property of its owner. (Baba Kamma 10)

And when one man's ox strikes his fellow's ox and it dies, they shall sell the living ox and divide its price, and they shall also divide the value of the dead animal.

וכי יגף AND IF [AN OX] HURT [AN OX OF HIS FELLOW-MAN] — יגף means to thrust; whether it injures by horns or the whole body, or whether it kicks with its foot or bites it with its teeth, all are included in the term נגף, for נגף means nothing else than מכה — the impact of one thing upon another (Mekhilta). שור איש means שור של איש THE OX OF A MAN (i. e. שור is in construct state to the word איש). ומכרו את השור וגו׳ THEN THEY SHALL SELL THE LIVE ONE — Scripture is speaking of a case when both animals are of the same value: an ox of the value of 200 zuz that killed another also valued at 200 zuz. Then whether the carcass is worth much or whether it is worth little, as soon as one takes one-half of the living animal and one-half of the dead, and the other takes one-half of the living animal and one-half of the dead, it follows that each of them suffers the loss of half the damage which the death of the animal has caused. Scripture teaches us that the תם (which is the animal spoken of here — one that inflicted injury for the first time) always pays half damages. For from what it states about animals of the same value you may gather the rule for such as are of different values — that the law regarding the תם is for its owner to pay half damages, neither more nor less. Or perhaps you might say that also of animals which were of unequal value when living Scripture states that both of them must be halved! But if you say this, you will find that sometimes the man who occasions the damage may benefit considerably — namely, when the carcass is worth when sold unto heathens much more than the value of the ox which inflicted the injury. And you must admit that it is impossible that Scripture should say that the man who occasioned the damage should benefit by it. Or it may sometimes happen that the claimant will receive much more than the value of the whole damage — namely, when one-half of the value of the defendant’s ox is worth more than the whole value of the claimant’s ox. Consequently if you still maintain this (that the animals are to be halved even when they are of different value), the result may well be that the case of the תם is more severely dealt with than that of the מועד (when the claimant gets full damages — but not more). You must therefore needs admit that Scripture speaks here only of animals that are of equal value, and that it teaches you that the owner of a תם has to pay half damages; and from what is said in respect to animals of equal value you may derive the law in respect of such as are of different values — that in any case when a person is paid half the damages caused to him we value the carcass for him (the claimant); and as regards the depreciation in value caused by its death — he must accept a sum equal to half of that depreciation together with the carcass and has to be satisfied (Hebrew: and goes his way). But why does Scripture use this mode of expression and does not simply say: he (the owner of the תם) shall pay the half...

"And when one man's ox strikes" — Ben Zuta said that "his fellow" is an attribute of the ox; but he did not see that "an ox of a man" is already a construct form, and thus "his fellow's ox" — an ox has no companion (רֵעַ) except Ben Zuta alone. This ox, which is a tam (unprovoked offender), its owner pays half the damage.

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.

ומכרו את השור החי, “and they sell the surviving ox.” What the Torah writes here applies only when the damage was caused through the ox being used on land that was not owned (or leased) by the owner of the ox. If it had been on property owned or leased by the ox’s owner, the party causing the damage is free from responsibility as the party that caused the damage can say to the owner: “what business did your ox have on my property?” וחצו את כספו וגם את המת, “they will share equally the price they realized for the surviving ox as well as that they salvaged for the carcass of the animal that was killed.” Seeing that the animal that gored did not have a history of being aggressive, its owner had no reason to take special precautions by tying it up. Fate played an equal role for both in causing them to suffer a financial loss.

וחצו את כספו, our sages (Baba Kamma 34) understand the entire verse as applying only to situations in which the owner of the offending animal is only liable for partial compensation, the offending animal having had a track record of being tame. The entire loss is to be borne in equal measure by both owner of the surviving animal and owner of the carcass.

Or if it becomes known that the ox was a gorer from yesterday and the day before, and its owner did not restrain it, he shall surely pay ox for ox, and the dead animal shall be his.

או נודע means, OR it was not a תם but IT IS KNOWN THAT THE OX WAS WONT TO THRUST to-day yesterday and the day before yesterday — thus you have the three acts of goring required to make it a שלם ישלם שור (Bava Kamma 23b) .מועד HE SHALL SURELY PAY AN OX [FOR THE OX] — i. e. the full damage. והמת יהיה לו AND THE DEAD SHALL BELONG TO HIM — to the claimant (Bava Kamma 23b) as part of this full payment. In addition to it the defendant has to complete the amount until the claimant has been paid for his entire loss.

OR IF IT BE KNOWN THAT THE OX WAS WONT TO GORE IN TIME PAST, AND ITS OWNER HATH NOT KEPT IT IN, HE SHALL SURELY PAY AN OX FOR AN OX. It is known that if a Tam too is properly guarded by its owner, but through an accident it so happened that it went out and caused damage, the owner is certainly not liable. Thus the reason why He states only with reference to a Muad, and its owner hath not kept it in, [when the same principle would apply to a Tam as well] is, according to that Sage in the Talmud who says that a Muad needs better guarding than a Tam, as follows: Scripture states that if the ox was wont to gore and warning had been given to its owner, and he hath not kept it in and guarded it better in view of its dangerous nature, so that it went out and caused damage, the owner must pay the full damage. According to the opinion of that Sage who holds that the degree of guarding necessary for both Tam and Muad is alike, the meaning of the verse is as follows: If it be known to the owner that the ox was wont to gore and now too [i.e., at the fourth time] he hath not kept it in, he is liable to pay the full damage on account of his grave negligence. AND THE DEAD BEAST SHALL BELONG TO HIM — “to the one who suffered the damage, and the one who caused the damage adds to it until he completes the amount, so that the one who was damaged will have been paid for his entire loss.” This is Rashi’s language, and is in accordance with the teaching of our Rabbis. And if so, it is proper that we explain the verse as follows: he shall surely pay ox for ox “with” the dead beast which shall, belong to him. Similarly, and Joseph was in Egypt, means: “with” Joseph who was in Egypt [they were seventy souls]. Likewise, I cannot endure iniquity ‘va’atzarah’ [literally: “and the solemn assembly”] means with the solemn assembly, similar to that which He said, I hate robbery ‘b’olah’ — “with” a burnt-offering. According to the simple meaning of Scripture it is possible to explain the expression, and the dead shall belong to him — to the one who caused the damage, the verse thus stating: he shall surely pay ox for ox, but he may keep the carcass, so that in making monetary compensation he can turn it over to the one who suffered the damage as part payment. Thus according to both interpretations the law is alike — the owner of the dead animal attends to the carcass, and its value is determined as at the time of its death, to be taken by him as part payment, according to the words of our Rabbis.

"Or if it is known" — and if the ox was a mu'ad (established gorer), he pays the full damage. Scripture continued with the subject of the ox until it reaches "when a man steals an ox or a sheep" — all of this on account of the slave who is sold for his theft, for that is how it began: "when you acquire a Hebrew slave."

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.

., “and he had not secured it;” actually we could have learned this by simple logic. If an owner of an ox that had gored must bear half the cost of the loss of its victim if the offending animal had had a reputation for aggressiveness and its master had not secured it, he surely must be liable for the whole damage! Why do we need the words: “and he had not secured it?” Therefore we learn that this word speaks another type of guarding that ox; he has to also muzzle such an ox so that it cannot become guilty of causing damage with its mouth, by either biting, or grazing in other people’s fields. An alternate explanation why the words: ולא ישמרנו are needed; logic does not suffice to impose penalties. Perhaps someone could come up with another aspect nullifying our logic. Therefore penalties have to be spelled out. Still another interpretation: the penalty applies even if the offending ox had been looked after on behalf of its owner by someone who did not charge the owner a fee for this.

When a man steals an ox or a lamb and slaughters it or sells it, he shall pay five oxen in place of the ox, and four sheep in place of the lamb.

חמשה בקר וגו׳ [HE SHALL PAY] FIVE OF THE HERD etc. — Rabban Jochanan ben Zaccai said, “The Omnipresent has much consideration for the honour of His creatures: when an ox — an animal that can walk by itself — has been stolen and sold or slaughtered, in which case the thief had not to degrade himself by carrying it on his shoulder, he has to pay fivefold restitution. In the case of a lamb, however, which he had to carry on his shoulder, he has to pay only the fourfold, because he was forced to degrade himself by carrying it”. Rabbi Meir said, “Come and see how great is the virtue of labour: In the case of the theft of an ox which he (the thief) withdrew from its labour, thereby causing a loss to its owner, he has to repay five oxen, in the case of a lamb which he has not withdrawn from its labour — only four (Bava Kamma 79b). תחת השור … תחת השה FOR THE OX … FOR THE LAMB — The text repeats the words שור and שה unnecessarily (for it would have sufficed to state כי יגנוב איש שור וטבחו או מכרו חמשה בקר ישלם תחתיו וארבע הצאן תחת השה “And if a man shall steal an ox … then he shall pay five of the herd for it, or four sheep in place of the lamb”) to tell you that the rule providing for four-fold and five-fold restitution applies solely to the ox and the lamb (and not to any other cattle) (Bava Kamma 67b).

"When a man steals" — R. Yeshu'a said: God added a heavier penalty for the ox than for the sheep because one cannot conceal an ox as one can a sheep, and therefore only one who is more practiced in the craft of theft can steal it. The Gaon said: because of the greater loss the ox causes its owner — for with it he plows.

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.

כי יגנוב איש, “if a man steals etc,” the legislation applying to the stolen goods having either been slaughtered and consumed or disposed of commercially, and the thief has been found, i.e. אם ימצא הגנב, applies also to the slaughterer and the seller (if they are not the thief himself). They are all penalised with 4 or five times the value of the objects they were trying to dispose of before they could be found. (Rash’bam) וטבחו או מכרו, and the thief had either slaughtered it or sold it; here we could also say that logic would have told us this. If the slaughterer is guilty of this penalty, surely the one who had sold it is also guilty of it? Had the Torah not written this example we would have reasoned that this is proof that penalties can be imposed by the court by the judges simply using their logic. וטבחו או מכרו, why did the Torah choose these two examples of how a thief wishes to eliminate suspicion from himself? Just as slaughtering and subsequently eating the ox is an irreversible act, so selling him and transferring ownership is a similarly irreversible act. חמשה בקר וגו' וארבע צאן, “five times the value of cattle, etc. or four times its value if he stole a sheep or goat.” The reason why the thief faces a relatively smaller penalty if the object he stole was a sheep or goat, is that he had to demean himself by carrying the animal from where he stole it. He did not use such tactics when stealing a large animal such as an ox. Also the loss of an ox to its owner is more serious as it deprives him of an animal that works for him while in his possession. This is not the case with sheep or goats. A different explanation for the penalties imposed for hiding evidence. Stealing a large animal such as an ox is evidence that the thief had experience in how to steal successfully. Stealing a lamb successfully is no evidence that the thief had become a professional thief. תחת השור.... תחת השה, “in exchange for the ox, in exchange for the lamb. The reason that the Torah repeats this legislation for each animal separately, is that by doing so it teaches that this particular legislation applies only in the event that either of these categories had been stolen and sold, etc. It does not apply if the stolen animal had been a camel or donkey, for instance.

כי יגנוב איש שור או שה וטבחו או מכרו, “if a man steals an ox or lamb and slaughters it or sells it, etc.,” according to the plain meaning of the text we are taught here that crimes which are more common than others need to be punished more harshly in order for the penalty to have a restraining effect on the potential criminal. Seeing that the Torah decrees that an ordinary thief has to pay back twice the value of what he has stolen, it is no more than logical that in cases where the thief tried to eliminate traces of the stolen object through eating it or selling it, he should be required to pay even higher compensation to its owner. The Torah stipulates double the ordinary penalty for people who steal sheep, goats, etc., whereas theft of cows and slaughtering them is paid for by five times their value if the thief is discovered. According to Maimonides (Moreh Nevuchim 3,41) the difference is due to large animals such as oxen being the object of theft more often as the shepherd cannot guard them as well as he can guard sheep. According to Mechilta (Nezikin section 12) the reduced penalty for stealing sheep is due to the Torah’s regard for human dignity. Whereas carrying a sheep under one’s arm is demeaning, leading an ox by a rope is not. Allowing for the thief’s having had to demean himself in order to bring the stolen sheep home, the Torah was content with the thief paying four times its value in order for him to exonerate himself. As a corollary of this piece of legislation we learn that the Torah considers manual labour as very important as it reduced the penalty for people whose crime involved manual labour. The reason a thief has to pay twice the value of what he has stolen whereas a robber only needs to make restitution without the Torah adding punitive damages, our sages are already on record (Baba Kama 79) that the robber placed the owner on a par with G’d, displaying no fear of either when he robbed in broad daylight. The thief, however, displayed more fear of the owner of the animal he stole than of the Lord in heaven who watches his crime. Seeing he insulted the Lord by the attitude he displayed when he indicated that he did not believe G’d saw his deed, he has to pay twice the value of what he stole. Isaiah 29,15 illustrated this bitingly when he said: “Ha! Those who would hide their plans deep from the Lord! Who do their work in dark places and say: ‘who sees us, who takes note of us?’” We find a similar verse in Psalms 94,7: “they think that the Lord does not see it, the G’d of Yaakov pays no heed.” A Midrashic approach (Shemot Rabbah 30,7): when the Israelites heard this legislation they said: “G’d has given us many commandments to help us make up for many sins we have committed; we have stolen an ox and we have made it into a golden calf; we paid five times the value of the ox as our fathers died in the desert on account of that sin. The legislation that a thief pays four times the value of a lamb he has stolen and slaughtered is a reference to the sale of Joseph on account of which we spent 400 years as slaves in Egypt, and we have since been ruled over by four different alien empires.” Thus far the wording of this Midrash. I believe that the meaning of this Midrash needs further clarification. The words: “our father died in the desert” are a reference to the three thousand idol-worshipping Israelites whom the Levites executed in the aftermath of the golden calf episode (32.,28). These words also refer to the other Israelites who died by a plague at that time as there was no evidence against them that could be presented in a court. (compare Exodus 32,28 and 35). Seeing that the Midrash mentions the number “five,” I assume that there were five different punishments meted out in connection with that sin. This is the meaning of the words תחת השור, i.e. the letter ה in front of the word שור. The five penalties were: 1) killing offenders whose deed was witnessed by the sword. 2) The plague that struck those whom G’d knew to be guilty but man could not prosecute. 3) the embarrassment caused those whom Moses made drink the water with the dissolved parts of the golden calf (32,20), similar to what a woman suspected of marital infidelity (Sotah) has to do (32,20). 4) The destruction of the Holy Temple many years later (compare Ezekiel 40,1) based on the words וביום פקדי ופקדתי in 32,34, meaning that whenever G’d brings on a great disaster, part of it is in delayed expiation for the sin of the golden calf. 5) that although G’d generally does not punish anyone for a sin committed more than four generations earlier (34,7), this sin was an exception and it is never fully expiated. Successive generations suffer a small portion of the punishment for it at the time they qualify for punishments for their own sins. I shall explain this in greater detail on Exodus 34,7.

חמשה בקר, our sages (Baba Kamma 79) rule that when the stolen ox had been doing work for the owner prior to its being stolen, compensation is set at 5 times the value of the labour the owner has now been deprived of.