Parashas Mishpatim

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Taste of Talmud

In Tractate Bava Kamma, 44b, the Talmud teaches us that an ox that killed a person must be stoned. It does not make a difference who owns the ox. Even if the ox is ownerless, it is stoned. The Chachamim derive this from the sevenfold repetition of the word ox in the portion dealing with damages caused by an ox. Rabbi Yehuda disagrees and says that, if an ox is ownerless, it is not stoned. He takes this rule one step further saying that even if the owner only relinquished his ownership in the animal after the killing, the ox is not stoned. Rabbi Yehuda derives this from a verse in this week’s Parasha: “when an ox gores and kills someone, “ve’huad biv’alav” (and they gave testimony to its owner) the ox must be stoned, and the owner is responsible for this death.” (Exodus 21:29) Rabbi Yehuda learns from here that only an ox that has an owner is stoned. Based on this verse, Rabbi Yehuda also learns that the ox must have an owner from the time of the goring through the time of the “g’mar din,” (verdict). This is learned from the words “V’hashor Yisakel” (and the ox will be stoned) which is the verdict. On 13b, Rabbi Yehuda extends this lesson to the rules of property damages and states that, even if an owner of an ox relinquishes his ownership of the ox after it causes property damage, the owner does not have to pay!

Taste of Halacha

The Rambam, in the laws of damages, (10:6) sides with the Chachamim, who disagree with Rabbi Yehuda. The Rambam says that an ox that kills must be stoned even if it is ownerless. However, in Chapter 8:4 of the laws of damages, the Rambam sides with the opinion of Rabbi Yehuda! He agrees that the owner of an ox is able to free himself from the obligation of paying for the damages of his ox by relinquishing his ownership in the ox.  Furthermore, the Rambam, in deciding that halacha, seemingly paraphrases Rabbi Yehuda incorrectly and says that there must be an owner only from the time of the goring until the beginning of the court case, not to the end.  We are left wondering: If the Rambam follows the opinion of Rabbi Yehuda, why does he not do so consistently and accurately? The Mareh Aynayim answers that the Rambam is not following the opinion of Rabbi Yehuda at all; rather, the Rambam is of the opinion that the Chachamim agree with Rabbi Yehuda in regards to property damages done by an ox. However, the Mareh Aynayim does not explain how this can be derived exegetically according to the Rambam. In his classic style, R’ Chaim Brisker provides clarity by pointing out that, in truth, there are two separate laws put forth in the verse from which these laws are derived, Exodus 21:29: 1) the ox must be stoned.  2) the owner is responsible.  Therefore, R’ Chaim says that the Chachamim argue about the application of the laws of ownership regarding stoning, but agree to these laws, in regards to the owner’s responsibility for property damages. This also answers why regarding the laws of responsibility of the owner of an ox, the Rambam concludes, that there must be an owner only until the beginning of the court case. The words, from which Rabbi Yehuda derived, that ownership must exist until the time of the verdict, are unique to an ox that is stoned. They are, “V’hashor Yisakel” (and the ox will be stoned). The Chachamim do not use those words for this drasha, because they learn from the sevenfold repetition that, in regards to a capital case, the ox is stoned even if it does not have an owner. However, they could still learn from the words at the end of the verse, “vehuad biv’alav” (and they gave testimony to its owner) that whoever is the owner at the time of testimony is responsible for any property damages that this ox inflicted.  Testimony is taken at the beginning of the court case. Therefore, the Chachamim’s opinion, which the Rambam is following, is that, as long as you were the owner of this ox at the beginning of the case, you are obligated for any damages it caused to property. The only way for the owner to avoid payments would be to relinquish his ownership in it before the beginning of the court case.

Taste of Parasha

Our sages teach us, “in the merit of saying Naaseh (we will do) before
Nishmah (we will hear), angels came and placed two crowns on the head of every Jew.” The Bais Halevi, the father of R’ Chaim Brisker, has a question on this wording. Why do they say it was in the merit of saying “Naaseh before Nishmah”? Why not just say, “In the merit of saying Naaseh and Nishmah?” The Bais Halevi answers by saying that there are two reasons a person would learn Torah:  1) to know how to do a mitzvah.  2) to learn it lishma (for its own sake), i.e. to understand the wisdom of G-d.  By saying Naaseh, before Nishmah, they expressed their desire to do more than only learn to know what to do. Rather, they were saying that first they were ready to learn what to do, “Naaseh”, and they were also ready to learn the wisdom of G-d, in depth, for its own sake, Lishma,”Nishma”. This was truly a meritorious and crowning moment!

About tasteofyeshiva

RABBI YAIR FRIEDMAN teaches at The Torah School of Greater Washington, and Yeshiva L' Baalei Batim. He is the owner and director of Camp Gevaldig LLC.
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