IMREI SHEFER BY RABBI SHLOMO KLUGER
Mishpotim
Imrei Shefer - Parshas Mishpotim
   

What judgments are excluded by the word “these”?

(21,1) “And these are the judgements that you shall set before them. When you buy a Hebrew slave…”

It seems to me that the meaning of the words “and these” can be understood according to the gemora in Bava Basra 89b - R. Yochanan ben Zakkai said (concerning the previously mentioned corrupt practices): Woe to me if I speak about them! Woe to me if I don’t speak about them! If I speak about them, perhaps the swindlers will learn how to swindle. If I don’t speak about them, perhaps the swindlers will say that the Sages are not familiar with our deeds, (and consequently they will continue to swindle).

They asked: Did he speak about them or did he not speak about them? Rav Shmuel bar Rav Yitzchok said: He spoke about them, and based on this posuk he spoke about them: “The ways of Hashem are straight, and the righteous walk in them and the wicked stumble in them (Hoshea 14:10)”.

Behold, we will take the side that he did not speak about them because of the concern that people might learn to deal falsely, and according to this the meaning here is that there were certainly many other laws which fall into the category of business interactions which Moshe could have spoken about, where one misled another person and similar cases, but Moshe did not wish to set these laws before Yisrael lest they learn from his words how to swindle.

Therefore Hashem said to him“And these” - specifically - “are the judgements which you shall set before them”, that is, “When you will purchase a Hebrew servant” and all the other laws that are enumerated here, about which there are no concerns that people will learn how to swindle. But do not place all the other laws before them, because people might learn from them to deal falsely. But the laws of a servant and similar laws where there are no concern of swindling, you can place before them. The posukim now make good sense.

Why is it mandatory that we be judged before Jewish courts?

(21,1) “And these are the judgements that you shall set before them.”

Another explanation of this posuk is according to what Chazal taught, that even if the nations would judge a case according to the exact same laws that Yisrael use, it would still be forbidden to have a case judged by them. This is what the posuk is saying, “These are the judgements that you shall set” - even if they are the very same laws and judgements that you shall set, nevertheless, it should be "before them” - only before them, and not before the nations.

With this we can understand the connection between the beginning of this parsha and the end of parshas Yisro, where it said, “you have seen that from the heavens I have spoken with you. You shall not make gods of silver with Me”. And we can also understand that which Dovid Hamelech said in Tehillim 97:8 “Zion heard and rejoiced, and the daughters of Yehudah exulted, because of Your judgements, Hashem. For You, Hashem, are most high above all the earth; You are very much exalted above all the gods”.

But first we need to understand why is it forbidden to be judged in front of non-Jews. If he is indeed being judged according to Jewish law, what difference does it make if the judge is not Jewish? The answer is that Hashem wants Yisrael to have no intermediary authority or judge over them, only Hashem Himself. Now, if Jewish judges are judging them, it says in Tehillim 82:1 “G-d stands in the congregation of G-d; in the midst of judges He will judge”, and Chazal teach that if three people are sitting and involved with learning Torah, (and judging a case according to halachah is itself learning Torah), the Shechinah dwells amongst them. If so, it is really Hashem who is doing the judging, and the judges are just His spokesmen. But if non-Jews are doing the judging, the Shechinah would not be there, and so the litigants would be judged by an intermediary, someone other than Hashem. For the same reason a convert cannot be a judge, because the Shechinah only dwells amongst families with unblemished Jewish genealogies. Therefore, it would be the convert, an intermediary, who is judging, and not Hashem, and G-d forbid that such a thing be done.

This is what the posuk is saying, “you have seen that from the heavens I have spoken with you. You shall not make gods of silver with Me”. That is, it is forbidden to make any intermediary with Me, and since this is so, “these are the judgements which you shall place before them”, and not before the nations. Even if they judge with the same judgements with which Yisrael judge, even so, it is forbidden to do by an intermediary, only by Hashem Himself.

This is what Dovid Hamelech wrote, “Zion heard and rejoiced, and the daughters of Yehudah exulted, because of Your judgements, Hashem” - because of the judgements about which You said that even a law which the nations judge like the laws of Yisrael should be judged only by Yisrael, and not by the nations. When Zion heard this, she rejoiced, because “You, Hashem, are most high above all the earth” - even though You are most high above all the earth, nevertheless, “You are very much exalted above all the gods”, because all the nations consider it honorable to use intermediaries, but You, on the other hand, are particular that there should be no intermediary between You and Yisrael, and by this it is clear that You are very much exalted above all the gods.

How does a law which is a judgment differ from one which is a statute?

(21,1) “And these are the judgements that you shall set before them.”

In the Yalkut it says that our posuk is explained by the posuk in Tehillim 147:19 “He tells his words to Ya’akov, His statutes and judgements to Yisrael”. What does the Yalkut mean? (The word ‘statute’ as used by the Torah, means a law, the reasoning of which we do not understand, as opposed to a ‘judgement’, which is a law whose reasoning we do understand.)

But first we need to understand the words of the Midrash on our posuk - Hashem said: I have given to you the Torah; if you accept the laws, good. And if not, I will take my Torah from you. It is not clear how this connects to our posuk.

But it seems to me that the Midrash is teaching us that it is possible to merit the Torah only when there is peace and unity amongst Yisrael. As it says in Tehillim 29:11 “Hashem will give עוז to His people, Hashem will bless His people with peace”, and the word עוז means Torah. Also, it says in Shemos 19:2 that at Mount Sinai “Yisrael encamped (ויחן) there opposite the mountain”, and Chazal explained that the use of the singular is to teach that they attained unity there, and through this they merited to receive the Torah.

Now, peace is impossible except when there is a judge making peace between a man and his fellow by judging their case. Therefore, it is clear why Hashem said that if you accept the laws then there will be peace amongst you, and you will merit to receive the Torah. But if you do not accept the laws, then there will not be peace, and where there is no peace, there is nothing, and you will not merit the Torah.

It says further in the Midrash that the Torah has laws before it and laws after it. Before the giving of the Torah, when they were in Marah, it says (15:25) “there He gave them a statute and a judgement”. And after the giving of the Torah it says “these are the judgements”. This is again saying like I just explained, that it was impossible to receive the Torah without peace, and peace is impossible without laws. Therefore it was imperative that Hashem should give them laws in Marah through which there would be peace amongst them, and so they could receive the Torah.

Now, it was impossible to tell them every law that there will be in the world until the days of Moshiach, but rather Hashem gave them some of the laws, and when a situation arose which required a new law, a judge would learn from the laws which had been told to Moshe and understand what the new law should be from that which is already known. However, as long as Hashem had not yet given them the Torah, they did not yet have a straight intellect to understand and extrapolate one thing to another, because only at Mount Sinai did everyone receive that which they were destined to reveal themselves in the Torah, and so only then they achieved the ability to think correctly and grasp each matter according to the truth of the Torah.

And so even though they had received some laws at Marah, nevertheless, if a situation occurred which required a different law which had not been said to them, they were not able to decide it on their own, because they had not yet understood the reasoning behind the laws which would enable them to extrapolate from one law to another. Instead they were forced to ask Moshe, and Moshe would ask Hashem to explain to them, and so the judgements were to Yisrael like statutes at that time. Even though after the giving of the Torah they were judgements since they then recognized the reasons, beforehand they were like statutes, and so only Moshe could decide new cases.

This is the meaning of the Midrash, that the Torah has laws before it, and laws after it. The laws before it were those that were given at Marah “there he gave them a statute and a judgement”. Both terms are referring to the same set of laws, and in fact they were all judgements and had a reasoning behind them, but in their eyes these laws seemed like statutes, and so they did not know how to learn from them to other laws. Therefore they were given laws afterward - “and these are the judgements” - because by then all Yisrael understood that they were judgements since they understood their reasoning, and so they were now able to extrapolate with their intellect from one law to another and no longer needed to ask Moshe specifically. Thus it says “and these are the judgements which you shall place before them”, before all of Yisrael, because even they can understand the reasons. The words of the Midrash have been precisely explained.

With this we can understand clearly the words of the Yalkut that we brought above, that our posuk “these are the judgements” is explained by the posuk in Tehillim “He tells his words to Ya’akov, His statutes and judgements to Yisrael”. The Yalkut had a problem with the posuk in Tehillim, because first it says “His statutes and judgements to Yisrael”, but afterwards it says, “He did not do so for any nation, and they have not known His judgements”. Why did it not say here also "they have not known His statutes and judgements"?

But according to what we explained above the explanation is that there are certainly those from the nations who understand the Hebrew language, and who can therefore learn what is written in the Torah and so know its laws. But in their eyes they are all like statutes, because as long as they remain one of the nations they are not able to understand one thing from the next, in order to decide a law which is not stated explicitly in the Torah. But by Yisrael they are judgements.

Therefore it says “His statutes and judgements to Yisrael”, because by Yisrael there are mitzvos which are statutes, and there are mitzvos which are judgements, but by the nations they are all like statutes. But the nations “have not known His judgements” - they do not understand the correct reasons of the laws to allow them to extrapolate, because the light of Torah does not shine upon them.

If someone who kills unintentionally does not flee to the city of refuge, is he put to death by the court?

(21,14) “And if a man plots against his fellow man to kill him with cunning, from My altar you shall take him to die.”

Rashi explains that the phrase “if a man plots” comes to exclude someone who kills unintentionally from being liable to the death penalty, but the Re’eim queries this, because surely this exclusion is written explicitly in an earlier posuk - “And if a person does not lie in wait, but G-d causes it to come to his hand, I will appoint for you a place whither he may flee”!

It seems to me that what Rashi means is that I might have thought that granted one who kills unintentionally achieves atonement by going into exile, this means that if he goes into exile he is not liable to the death penalty, but if he does not go into exile then Beis Din will put him to death.

But the truth is that the law is that even if he does not flee to one of the cities of refuge he is still not liable to the death penalty. However, if he does not flee and a "redeemer of the blood" (someone who wishes to avenge the death of the one who was unintentionally slain) kills him, he is not put to death.

Therefore the Torah writes “if a man plots” to exclude one who kills unintentionally a second time, to teach us that even if he does not go into exile he is nevertheless not liable to the death penalty. The posukim now make good sense.

How much would one pay for stealing a cow?

(21,37) “If a man steals an ox or a lamb and slaughters it or sells it, he shall pay five cattle for the ox and four flock-animals for the lamb.”

Rashi explains - Rabban Yochanan ben Zakkai said: Hashem shows compassion for people’s honor - for an ox which can walk on its own and thus the thief did not have to demean himself with it by having to carry it on his shoulder he pays fivefold, but for a lamb which he had to carry on his shoulder he pays fourfold since he demeaned himself with it.

Rabbi Meir said: Come and see how great is the power of work - for an ox which he caused to be idle from its work he pays fivefold, but for a lamb which he did not cause to be idle from its work he pays fivefold.

Why do we need two reasons to explain the difference in the payments? But behold, there is a practical difference between these two reasons - if he stole a cow which does not normally do work:

According to the one who says that the reason behind the difference in payments is because of people’s honor, since a cow can walk by itself and thus the thief was not demeaned, he pays fivefold.

But according to the one who says that the difference is due to the power of work, a cow does not normally do work. And even though a cow does sometimes do work, nevertheless it is not commonplace. Therefore he pays only fourfold since it is uncommon for a cow to do work. Everthing now makes good sense.

How is oppressing widows and orphans really oppressing Hashem?

(22,21) “You shall not afflict any widow or orphan. If you afflict him, if he cries out to Me, I will surely hear his cry. My wrath will be kindled, and I will slay you with the sword, and your wives will be widows and your children orphans.”

It seems to me that the meaning of the posuk is according to what Chazal said on the posuk in Zechariah 2:12 “whoever touches, you, touches the apple of his eye” - His (Hashem’s) eye, so to speak. Thus the posuk is saying that one who afflicts a widow or an orphan, do you think that you are afflicting them? Behold if they cry out to Hashem, He will have mercy upon them, because Hashem is merciful and gracious. If so, it is like afflicting Hashem Himself. That is why the posuk uses a double expression תענה ענה - to express wonder, “is it really them that you are afflicting? If they cry out to me, I will surely hear them”, and if so, you are effectively afflicting Me and not them.

Alternatively, we can explain that since Hashem is very merciful towards widows and orphans, He is saying: If you afflict them and they cry out to Me, My anger will be kindled and I will slay you, and then your wives will become widows and your children orphans, and through this you will cause Me distress, and so you will be afflicting Me. Thus the posuk “If you afflict him” means "is the affliction to him?". No, mine is the affliction, because if he cries out to Me, I will surely listen to him, and have mercy upon him and consequently your wives will become widows and your children orphans, and so this punishment that will happen to you will itself be an affliction to Me.

What should one do if a poor person is unable to pay a debt?

(22,24) “When you lend money to My people, to the poor person with you, you shall not be towards him as a lender; you shall not impose interest upon him.”

In the Midrash it says that our posuk is explained by the posuk in Tehillim 112:5 “Good is the man who is gracious and lends, who conducts his affairs with judgement” - and there no one who is not obligated to Hashem. What is the Midrash saying?

It seems to me that the Midrash had a difficulty with the language of the posuk, which says “you shall not be towards him like a lender”. If the posuk means to say that it is forbidden to demand money from the poor person if he does not have it, then it should have said, “do not be towards him a lender”. Why does it say “like a lender”? Also, the order of the posuk is strange; it should have first said “do not impose upon him interest”, and then it should have said “do not be towards him like a lender”, because imposing interest takes place at the beginning of the loan, and the prohibition to demand the money is later, when the time of repayment arrives.

Therefore the Midrash explains that the posuk comes to teach us that not only is it forbidden to demand money from him, but even if you have already lent money to a poor person once and he had no money to repay the loan, and he comes to borrow from you again, do not behave towards him the way most people would, and say to him: Behold, you are already in debt to me and you have not yet paid. Granted that I am not going to demand money from you, but nevertheless I’m not obligated to lend to you further. Hashem commanded that one should not say this, because even though he is not demanding payment, nevertheless, he is showing that he has not yet forgiven him the loan, and in his mind he is still obligated to him. Instead, Hashem commanded him that he should put in his mind that he is not a lender to the poor person at all - that he has already forgiven the first loan and it as if he had never owed him, and he is obligated to lend to him again.

This what it means “he shall not be to him like a lender” - even though he is not actually claiming from him, nevertheless, he should not appear as if he is lending to him by refusing to lend to him again, but rather he should forgive the first loan if the poor person does not have money to repay it, and lend to him a second time. And therefore it now says that “you shall not impose upon him interest”, because since he is obligated to lend to him a second time, he should not say to him "You also owe me from before, and if I lend to you again, at the very least you should pay me interest", because also this the Torah forbids.

Now, the Midrash had a difficulty with the posuk “Good is the man who is gracious and lends”, because these two things are contradictory - because ‘gracious’ implies giving for free, as Chazal say in many places, whereas a lender implies that he intends that the borrower should repay him. If so, how can one be both gracious and a lender? Also, it is not clear how the judgement which is mentioned in the end of the posuk - “who conducts his affairs with judgement” - is relevant here.

But it is well known that the way a person conducts himself, Hashem conducts Himself towards that person. It is also well known, that a person is required to cling to the traits of Hashem. Like Chazal taught, that just as Hashem is gracious, so too you should be gracious, and so on. Now, Hashem bestows good on a person in order that he will be able to do Hashem’s will, and to observe Torah and mitzvos. Thus, because of this goodness that he receives, a person is obligated to Hashem to observe Torah and mitzvos, and so if he transgresses the Torah, then he has not yet paid his obligation to Hashem, and so it would be fitting if Hashem would not bestow upon him any further goodness. This is what people are accustomed to do, that if someone is obligated to his friend and does not repay him, his friend will not lend to him again. But Hashem forgives the first 'loan' and lends to him afresh, in order that he might still repent his ways. Therefore, since Hashem conducts himself in this fashion, a person is obligated to conduct himself the same way, and thus he will merit that Hashem will continue to forgive the first and lend to him anew.

This is what the posuk in Tehillim is saying, “Good is the man who is gracious and lends”, that the reason why he is called good is because he is gracious and forgives that which the person is already obligated to him and gives it to him as a free gift, and lends to him again. Thus he “conducts his affairs with judgement”, with the judgement of Hashem. With the same rule the Hashem uses with a person, forgiving the first 'loan', so too this person conducts himself and forgives the earlier loan - this is a good man. And since there is no one who is not obligated to Hashem, everyone is obligated to conduct themselves this way. This is the meaning of the Midrash.

What is the consequence of not lending money to a poor person.

(22,24) “When you lend money to My people, to the poor person with you, you shall not be towards him as a lender; you shall not impose interest upon him.”

It says further in the Midrash, that this posuk is explained by the posuk in Koheles 5:12 “There is wealth kept by its owner for his detriment”. It seems that the Midrash had a difficulty with the wording of our posuk “the poor person with you”, the words ‘with you’ seem superfluous and have no apparent explanation.

Therefore, the Midrash explained that the words ‘with you’ refer to the money. That is, “if you lend to a poor person”, then “with you” will remain the money - Hashem will not take it from you. But if you do not lend to the poor person, then the money will not remain with you. And the Midrash brings a proof to this, that “there is wealth which is kept by its owner for his detriment”, that his wealth will harm him. That by not giving from his money to a poor person even though he has the ability to do so, he will lose all his wealth, and he will not be able to exist.

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