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S.A.L.T. – PARASHAT MISHPATIM By Rav David Silverberg Motzaei
Shabbat Parashat Mishpatim discusses the liability for physical harm in a
case of a person who injures his fellow.
Chazal inferred from the Torah’s presentation five different
restitution payments that the responsible party must pay the victim, two of
which are mentioned explicitly in Parashat Mishpatim: “rak shivto yitein ve-rapo yerapei” (“he must, however, pay his lost wages,
and he must cure him” – 21:19). The
Torah here establishes the responsibility to pay the victim shevet – the income he lost as a result of the
injury – and ripui – the medical expenses he
incurred.
The Ramban, in his commentary to this verse, notes that the Torah
formulates these two obligations in very different ways. With regard to shevet, the Torah
speaks of monetary restitution – “shivto yitein.” When it comes to
ripui, however, the Torah does not actually order the mazik (person guilty of causing harm) to
pay this sum of money, but rather to “cure him.” The Ramban infers from this formulation
that the guilty party pays the medical expenses directly to the physician who
treats the victim. The victim is
not entitled to insist upon receiving the estimated value of his medical costs
so he can use the money at his discretion.
The Ramban’s comments to this verse serve as an early source for a theory
developed by later scholars, including Rav Elchanan Wasserman Hy”d, in
his Kovetz Shiurim (Ketubot
218), concerning the nature of the ripui obligation. The Torah obligates the responsible
party to “cure” the victim, not to pay him money. We might describe this liability as
personal, rather than financial. By
formulating this liability as an obligation to cure the victim, rather than pay
him compensation, the Torah indicates that the guilty party does not owe money
to the victim. Rather, he bears an
obligation to cover his medical costs.
Hence, the Ramban concluded that the victim cannot insist upon receiving
the estimated value of his medical expenses and then use these funds as he sees
fit.
Rav Elchanan notes another practical ramification of this perspective on
ripui, namely, that the rights to this payment cannot be inherited. If the court orders the mazik
(person guilty of causing damage) to pay a certain sum to cover the victim’s medical costs, but
the victim dies before the payment is made, the inheritors cannot then claim
this money from the mazik.
Even after the court’s ruling, the mazik does not bear a
monetary obligation to the victim with respect to ripui (as he does regarding the other restitution
payments). He bears the
responsibility to cure the injury or injuries he caused by paying for the
medical treatments necessitated as a result. Once the victim dies, these treatments
are no longer necessary, and thus the mazik bears no further ripui obligations. As such, even though the court had
already ordered the mazik to pay the medical expenses, the
victim’s inheritors cannot claim rights to this money. Sunday
Yesterday, we presented the theory developed by Rav Elchanan Wasserman
(Kovetz Shiurim,
Ketubot 218) and others concerning the law of ripui – liability to cover medical costs incurred
by an injury that one caused his fellow.
This theory claimed that unlike other forms of compensation, ripui is a personal, rather than financial,
obligation. The Torah requires the
mazik (person who caused the
damage) to ensure that the victim receives the required medical treatment,
which, in practical terms, means paying the medical costs. Essentially, however, the liability is
defined as an obligation to treat the injury, and not an obligation to pay
compensation. Thus, for example,
the Ramban writes in his commentary to Parashat Mishpatim (21:19) that the mazik pays the funds directly to the
physician treating the injuries, and the victim cannot demand that the money be
given to him. Since the
mazik bears no financial obligation to the victim, and is rather
responsible to treat the injuries he caused, he is under no obligation to pay
money to the victim.
Rav Elchanan drew proof for this perspective on ripui from the
Gemara’s comment in Masekhet Gittin (12b) concerning a case where a person
injures somebody else’s eved Kena’ani (gentile servant). There is a general rule regarding the
institution of eved Kena’ani
that “ma she-kana eved kana rabo” – all property of the servant is
de facto considered the property of the owner. Since the eved is himself legally
“owned” by the master, any possessions or property he acquires automatically
becomes the property of the master.
Therefore, if somebody injures an eved Kena’ani, the restitution payments are made directly
to the owner. The Gemara makes an
exception, however, for ripui.
The responsibility for the victim’s medical costs is borne directly to
the servant, and does not go through the master. As Rav Elchanan explains, the
mazik does not owe the value of the ripui payment to the eved, such that the debt would then
automatically be transferred to the owner.
Rather, he must “cure” the servant by covering his medical costs, and his
responsibility is therefore personally to the servant, and the master is not
involved.
However, a careful reading of the Gemara’s discussion may, at first
glance, reveal that to the contrary, it proves that the ripui obligation is, in fact, a financial
obligation to the victim. The
Gemara addresses the case of an eved who is injured and a five-day
treatment program is prescribed, thus requiring the mazik to pay for the five days of treatment. But the physician found a stronger
medication that caused the victim greater discomfort, but cured the injury in
just three days, thus reducing the total cost of treatment. The Gemara rules that the extra cost,
which the doctor did not charge because of the briefer period of treatment, is
paid to the master. Even though the
servant endured additional suffering as a result of the accelerated treatment,
the surplus funds are given to his master.
The question arises, according to the theory developed by Rav Elchanan,
why would the surplus funds be paid at all? According to this theory, the
mazik’s obligation is
to cure the victim, not to pay him a particular sum of money. Seemingly, then, the initial estimate of
the cost of treatment should have no bearing on the mazik’s liability. If the victim found a “bargain” such
that his injures incurred lower-than-expected costs, the mazik
meets his obligation by paying this lower sum, which achieved the desired result
of complete recovery. Why should
the mazik be required to pay the original estimate, if the actual
expenses were lower?
Rav Chaim Dov Eisenstein, in his Peninim Mi-bei Midresha (Jerusalem, 5766), cites his father as
rereading the Gemara in way that reconciles its ruling with Rav Elchanan’s
perspective on the ripui obligation. He suggested that the Gemara refers not
to a ripui payment made to the
servant’s owner, but rather to the payment of tza’ar.
One of the restitution payments owed to an injured victim is compensation
for the physical pain endured. If a
more aggressive treatment program causes the victim additional pain, this will
affect the mazik’s liability for tza’ar, as it increases the amount of pain
suffered as a result of the injury.
Therefore, in such a case, even though the mazik enjoys a reduction in his ripui liability, his tza’ar obligations increase. And it is perhaps to this increase that
the Gemara refers when it speaks of the payment resulting from accelerated
treatment. Indeed, the Gemara says,
“One would have assumed that it is his [the servant’s] pain [and thus he should
receive the payment], and it therefore comes to teach [that the money is paid to
the master].” The Gemara speaks in
terms of the servant’s pain, thus perhaps suggesting that the reference here is
to the tza’ar liability, rather than ripui. This payment is made to the master,
rather than the servant, because, unlike ripui, the tza’ar
liability is a financial obligation, a debt owed to the victim. And since any money owed to a servant is
automatically owed to his master, the mazik must make the tza’ar payment to the
master. Monday
In our last two editions of “S.A.L.T.” we explored a possible distinction
between the obligation of ripui –
compensating a person for medical expenses incurred as a result of physical harm
caused to him – and other restitution payments that the Torah requires. As the Ramban noted in his commentary to
Parashat Mishpatim (21:19), the Torah formulates the liability for ripui with the
phrase, “ve-rapo yerapei” (“he
shall surely cure him”), suggesting that the obligation is defined in terms of
healing the victim. The
mazik (person who caused the injury) does not, fundamentally, bear
a financial obligation toward the victim with regard to the medical costs, but
rather bears a personal obligation to see to it that his medical needs are cared
for. In practice, this is done by
covering the medical bills, but in principle, the obligation is to ensure the
victim’s full recovery, and not a financial obligation.
A number of later writers challenged this assertion on the basis of the
Gemara’s discussion in Masekhet Bava Kama (91a) concerning a case of a victim
who recovered from his injuries without medical treatment. The Gemara writes that if the court
ordered the mazik to pay a certain sum for ripui based upon its assessment of the
medical costs, but then the victim recovered without treatment, the mazik must nevertheless pay the sum stipulated by
the court. This would appear to
prove that ripui, like other liability payments, is a
clear-cut financial obligation borne by the mazik to the
victim. If this was merely a
personal obligation to ensure the victim’s recovery, there would certainly be no
obligation to pay once the victim has recovered.
Rav Avraham Erlenger, in his Birkat Avraham to Masekhet Bava Kama, suggests, quite
simply, that the Gemara’s ruling applies on the level of rabbinic enactment, and
not Torah law. According to Torah
law, the mazik in such a case
would, indeed, be exempt from payment, since the victim recovered from the
injuries. However, Chazal
instituted a different system for the ripui payment, out of concern for the
mazik. The Rambam, in
Hilkhot Chovel (2:14), writes that in a case of bodily injury, the court
assesses the projected medical costs, the entirety of which the mazik then pays up front, and the Rambam then
adds, “and this is a provision enacted for the benefit of mazik.”
Meaning, for the benefit of the mazik, the Sages enacted that he should
pay a stipulated sum for ripui, rather than be required to pay each day’s
medical costs as they are incurred.
This way, he has a specified sum to pay without facing an indefinite debt
of an unknown duration and value.
The Birkat Avraham claims that in enacting this provision, the
Sages effectively transformed the ripui liability into an ordinary financial
obligation. They offered the
mazik the option of assuming
liability for the medical costs as a standard financial obligation, rather than
being personally obligated toward the victim, which may leave him with an
infinite debt for an indefinite period.
And it stands to reason that if, after the mazik pays the
stipulated sum, the victim quickly recovers and does not require the anticipated
treatment, he is not required to return the excess funds to the mazik.
Once the Sages transformed the ripui payment into a standard financial
obligation, the victim is legally entitled to the stipulated sum, regardless of
whether he ultimately requires the entire sum for his medical
costs.
Thus, by force of rabbinic enactment, the mazik indeed bears a
financial obligation to the victim.
The motivation for this enactment was to assist the mazik, but in some situations – when the victim
recovers without treatment or without the anticipated duration of treatment – it
will work to his detriment. The
Ramban’s perspective on ripui is thus correct on the level of Torah law,
but on the level of rabbinic enactment, this payment is a standard financial
obligation, as reflected in the Gemara’s ruling about a victim who recovers
without treatment. Tuesday
Toward the end of Parashat Mishpatim, the Torah describes the revelation
of the divine presence atop Mount Sinai.
We read that Moshe, Aharon, Aharon’s older sons, and the nation’s elders
ascended the mountain, and they beheld God’s presence. The site that they beheld, the Torah
describes, resembled “livnat ha-sapir” (24:10),
which, according to the plain reading of the text, means “the whiteness of
sapphire.” Rashi, however, citing
the Midrash, explains the term “livnat” to mean
“brick,” a derivative of the Hebrew word “leveina.” What the men saw, Rashi writes, is a
sapphire-colored brick that symbolized the Egyptian bondage: “It had been in
front of Him since the time of the bondage [for Him] to remember the suffering
of Israel, who were enslaved with the construction of
bricks.”
Chizkuni cites a more elaborate version of the Midrash’s comment. He writes that there was an Israelite
woman named Rachel who was forced to tread on mud for the production of bricks,
together with her husband. The
Egyptian taskmasters did not allow her a recess even during pregnancy, and her
infant was delivered as she labored in the mudpits. The infant fell into and mixed with the
mud that was eventually made into a brick.
In response to Rachel’s cries of horror, the Midrash writes, the angel
Michael descended and brought the brick before the Almighty’s throne in the
heavens, as a reminder of the deadly brutality to which God’s people were
subjected. Chizkuni notes that the
word “sapir”
(“sapphire”) is related to the word “shefir,” or
“afterbirth,” thus alluding to the fact that the brick viewed by the leaders of
Benei Yisrael atop Mount Sinai was made from the remains of a newborn
infant that perished after birth in the mudpits.
This account also appears in Hadar Zekeinim (a
collection of commentaries from the Tosafists), which adds that this brick
remained by the Almighty’s foot stool, as it were, to remind Him of Benei Yisrael’s suffering in Egypt, even many centuries after Matan
Torah. At the time of the Temple’s destruction,
however, God, in His fury, threw away the brick, so-to-speak. Benei Yisrael had degenerated to such an extent that God
no longer took into account the period of suffering at the hands of the
Egyptians as a basis for dealing compassionately with them. In this vein, Hadar Zekeinim explains the verse in Eicha (2:1),
“hishlikh mi-shamayim eretz tiferet Yisrael” – “He cast the glory
of Israel from the heavens to the earth.”
Hadar Zekeinim suggests that this refers to the brick, which had
served as the “glory of Israel” in that it represented the suffering that they
endured during the two centuries of bondage.
Rav Avraham Yafhan of Nevarduk, in his Ha-musar Ve-ha’da’at
(Jerusalem, 5738), notes the deeper lesson that emerges from the sight of the
brick – the symbol of Benei Yisrael’s suffering – in the heavens. He writes that the achievements that
make an impact and leave an impression here on earth are not the same
achievements that make an impact in the eternal world, in the heavens. Technological wonders and spectacular
skyscrapers are remarkable achievements and are valued here in this world, but
this is not the kind of thing that has an impact in the heavens. What “impresses” God, so-to-speak, what
leaves its mark by the divine throne, is the “brick,” our hard work and the
sacrifices we make for the sake of the Almighty. Rav Yafhan writes that Benei Yisrael endured the hardships of
slavery in preparation to become God’s nation and receive the Torah. This work that we do during our lives to
become the Almighty’s loyal servants is what He cherishes and keeps before
Him. Everything else, even the
accomplishments that appear dazzling to us here on earth, makes far less of an
impression. We achieve eternity
through the “livnat ha-sapir,” our hard work and devotion in fulfilling
the divine will, and not through our success in our material and worldly
pursuits. Wednesday
Parashat Mishpatim begins with the laws of the eved ivri, the
indentured Hebrew servant, whose master is required to release him after six
years of service. If, however, the
servant prefers remaining in the master’s home as an eved ivri, he may,
but only after a ceremony is performed whereby the master pierces the servant’s
ear, seemingly as a symbol of his permanent indentured
status.
In a famous passage in Masekhet Kiddushin (22b), Rabban Yochanan Ben
Zakai suggests an explanation for why this particular symbol is required when an
eved ivri voluntarily decides to remain with his master:
Why was the ear singled out from all limbs
of the body? The Almighty said: The
ear that heard My voice at Mount Sinai at the time when I said, “for the
Israelites are slaves to Me” – and not slaves to slaves – but went ahead and
acquired a master for himself, must be pierced. In short, the servant’s ear is pierced
because the servant violated the precept heard at Sinai that we are servants of
God, and not of other human beings.
The servant is punished, it appears, through the piercing of his ear,
which heard the declaration which he betrayed.
Many later commentators addressed the obvious question of why Rabban
Yochanan’s logic does not apply to any transgression that a person commits. The entire Torah was given at Sinai –
not just the proclamation, “ki li venei Yisrael avadim,” that we are God’s servants – and thus,
seemingly, any sin that one commits constitutes a betrayal of the ear that heard
God’s voice at Sinai. Why does only
the servant who voluntarily retains his status deserve to have his ear
pierced?
The ear, as the organ that enables us to hear, is the symbol of obedience
and subservience. A willed decision
to subjugate oneself to another human being necessarily “pierces the ear”; it
hampers his or her ability to receive commands from another authority. Rabban Yochanan’s point is not that
Benei Yisrael’s
physically heard the words, “ki li venei Yisrael avadim,” but rather that at Mount Sinai our “ears”
became subjugated to the Almighty; we committed ourselves to enter exclusively
into His service. We promised that
our ears would remain attuned at all times to hear and obey the divine command,
and always be prepared to fulfill His will. A person who accepts upon himself an
authority other than God, by definition, undermines his or her level of
preparedness to accept and obey the divine command. This, Rabbi Yochanan teaches, is the
symbolic meaning of the ritual of retzi’a (piercing).
This significance of Rabban Yochanan’s message extends beyond the narrow
context of eved ivri. Any pursuit to which one commits himself
and affords importance can potentially undermine his level of subservience to
the Almighty. Whether it’s a
career, hobby, form of recreation, or friendship – all of which are, inherently,
perfectly acceptable and important aspects of life – we must ensure that our
areas of engagement remain just that – areas in which we engage – and do not
become a form of “subjugation.” The
institution of eved ivri warns
against taking on commitments that have the effect of “piercing our ear,” of
hampering our ability to serve our Creator. Human beings are given finite amounts of
time, money and physical and mental energy, resources that must be carefully
prioritized and allocated. We are
thus bidden to avoid commitments that conflict with and undermine our highest
priority in life – the sincere and devoted service of God. (Based on Rav
Avraham Yafhan’s Ha-musar Ve-ha’da’at) Thursday
Among the topics discussed in Parashat Mishpatim is that of “shomerim”
(“custodians”), the liabilities borne by a person who is entrusted with somebody
else’s possession which is then lost or damaged. The Torah establishes the law of
“shevu’at ha-shomerim,” which
requires the custodian to swear on oath that he acted responsibly and is not
guilty of negligence (22:7). In the
next verse, the Torah writes, “In every case of negligence – regarding an ox, a
donkey, a sheep, a garment, on any item that is lost…the dispute between the two
shall come before judges, and he whom the judges find guilty shall pay double to
his fellow.” The Torah speaks here
of an obligation of keifel, paying
twice the value of the lost object.
While the keifel penalty is
generally imposed only upon a thief, the Sages, as Rashi cites, inferred from
this verse that in some situations, a shomer must pay the
object’s owner twice the value of the lost object. If the shomer claims
that the item was stolen and swore to this effect, and it is later discovered
that he had, in fact, taken the item, then he must pay keifel, as he is
considered to have stolen the object in question.
There is, however, an obvious question that arises from this verse. The Torah mentions that “he whom the
judges find guilty” (“asher yarshi’un elohim”) is required to pay
the keifel penalty. The implication is that when the owner
and the shomer come before the
judge, the litigant “whom the judges find guilty” – either the shomer or the owner – is required to pay keifel.
Needless to say, it is difficult to imagine a case where the object’s
owner – the plaintiff – would be ordered to pay anything, let alone keifel.
To whom, then, does the Torah refer when it says, “he whom the judges
find guilty shall pay double to his fellow”? Why did it not simply state that if the
shomer is found guilty, he
pays keifel? Why does the
Torah give the impression that in some situations a different party – presumably
the owner – is liable to pay?
This question is likely what prompted Rashi to explain that the Torah
alludes here to a situation of eidim zomemin – false witnesses who testify that the
shomer had taken the object for himself. If these witnesses are later discovered
to have lied (as two other witnesses testify to having seen them at the time
they claimed to have seen the incident), then the witnesses must pay the
shomer – the victim of their testimony – twice the value they sought to
have him pay. This law is in
accordance with the famous principle established in Sefer Devarim (19:19),
“va-asitem lo ka’asher zamam
la’asot le-achiv” (“you shall do
to him what he had plotted to do to his fellow”), which means that false
witnesses receive the sentence they sought to have issued against the subject of
their testimony. In the case of a
shomer who claimed that the item was stolen, the
witnesses tried to have the shomer pay keifel, and therefore if they are discovered to
have testified falsely, they must pay him keifel.
Thus, according to Rashi, when the Torah speaks of the judges finding one
of the parties guilty, indicating that there is more than one party that could
be liable to pay (besides the shomer), it refers to the witnesses, who are liable
to pay the shomer if it turns
out that they had testified falsely.
Rav Moshe Leib Shachor, in his work Avnei Shoham, notes that
Rashi’s comments to this verse could perhaps help resolve a question posed by
Rabbi Eliezer of
The answer, the Avnei Shoham writes, can
be found in Rashi’s comments here in Parashat Mishpatim. According to Rashi, the phrase “asher
yarshi’un elohim yeshalem shenayim
le-rei’eihu” (“he whom
the judges find guilty shall pay double to his fellow”) means that if the
shomer is
found liable, then he must pay keifel, and if witnesses testified
falsely against him, then they must pay him keifel. Thus, this verse might serve as the
source of the halakha requiring convicted eidim zomemin to pay their penalty
specifically to the person against whom they testified. The Torah here stipulates that eidim
zomemin who testified against a shomer must pay the penalty to the shomer, thus establishing that when eidim zomemin are required to pay, the money is paid to
the person against whom they falsely testified. Friday
The Torah in Parashat Mishpatim issues a command concerning a garment
taken as collateral from an impoverished debtor: “If you take your neighbor’s garment as a
pledge, you shall return it to him by sundown. For it is his only covering; it
is his garment for his skin – in what shall he sleep? And it shall be, when he
cries out to Me, that I shall hear, for I am merciful” (Shemot 22:25-26). Given the likelihood that the destitute
borrower cannot afford another garment or blanket to keep him warm at night, the
Torah commands the creditor to return the garment for the night, and then
retrieve it the next morning.
Surprisingly, God found it necessary to add an emphatic and
strongly-worded explanation for this mitzva: “For it is his only
covering; it is his garment for his skin – in what shall he sleep? And it shall
be, when he cries out to Me, that I shall hear, for I am merciful.” At first glance, the command itself
seems eminently understandable, as requiring us to show compassion to a needy
pauper who barely has what to sleep in on cold winter nights. Why must God explain this to us? And why must He issue a stern warning
against lenders who refuse to return the collateral (“when he cries out to Me…I
shall hear…”)?
The Rosh Yeshiva, HaRav Baruch Gigi shelit”a (http://vbm-torah.org/archive/sichot70/18-70mishpatim.htm),
cited the Seridei Eish as explaining that the Torah here imposes
upon the creditor a demand that seems wholly unjust. If the creditor must return the
collateral at sundown each day, and then come back to the poor man’s home the
next morning to retrieve it, then this garment hardly serves the intended
purpose of ensuring the return of the loan. After all, if the lender obeys this
mitzva, then the borrower has lost nothing by surrendering the
garment as collateral. He receives
it every night, which is when he needs it.
Essentially, the Torah’s command undermines the entire purpose of this
arrangement, and, as such, it requires the lender to forfeit his guarantee that
the loan will be repaid.
Technically speaking, the command is to return the garment every evening;
practically, though, it requires much more than that – it demands that the
lender forego on the borrower’s guarantee.
And this is why the Torah must explain this command so emphatically. In an abstract, legal sense, a lender
has every right to demand collateral and to hold onto it until the loan is
paid. But the Torah requires us to
look beyond the level of abstract legalities, and to consider the practical,
bottom-line implications of the law.
When charting a proper course of action, we cannot just read the
textbook; we must picture in our minds a poor man shivering at night because his
only warm blanket is in the home of his wealthy neighbor who lent him
money. The law must take this
reality into account.
Indeed, the Mekhilta, commenting on the words, “I shall hear, for
I am merciful,” writes, “I created My world with compassion.” Rav Yehuda Leib Ginsburg, in his
Yalkut Yehuda, explains the
Mekhilta’s comment to mean that we must treat people with “extralegal”
compassion because the world cannot be sustained solely by the strict letter of
the law. Chazal elsewhere teach that God specifically chose
to create the world through a synthesis of midat ha-din (the attribute of strict
justice) and midat ha-rachamim (the attribute of mercy), because the world
cannot survive on midat
ha-din alone. And just as God exercises mercy and
compassion in governing the earth, we must similarly conduct our affairs with
sensitivity. It is within a
lender’s right to keep a poor lender’s collateral, but society cannot function
properly if its members consistently and uncompromisingly exercise all their
strict legal rights. We, like the
Almighty, must find the delicate balance between midat ha-din and midat ha-rachamim,
between maintaining an enforceable and authoritative legal system, and the
flexibility warranted by the ideals of mercy and compassion. Something can be technically legal but,
at the same time, morally objectionable.
God hears the cry of the poor man without a blanket, and bids us to
do the same, to conduct all our affairs with sensitivity, and be prepared to
forego on formal legal rights for the sake of the higher values of kindness and
compassion. |