סדר משפטים

כי תקנה עבד עברי

When you buy a Hebrew slave

Exodus 21:2

Rashi comments: [This means] a slave who is a Hebrew. Or [perhaps] not, but the slave of a Hebrew, i.e., a Canaanite servant whom you have bought from an Israelite? It is concerning him that the Scripture states “ששת שנים יעבד”) he shall serve six years). And [should you ask], how do I explain [the commandment] (Leviticus 25:46): “והתנחלתם אתם לבניכם אחריכם לרשׁת אחזּה לעלם בהם תעבדו” (And you shall take them as an inheritance for your children after you, to inherit them for a possession; they shall be your slaves forever)? [Then I reply, this verse refers to] a slave who was purchased from a Gentile. But if such a slave had been bought from an Israelite he shall go free [after] six years. [To preclude thid interpretation] the Scripture states (Deuteronomy 15:12) “כּי ימכר לך אחיך העברִי או העבריה ועבדך שש שנים ובשּנה השּביעת תשלּחנו חפשי מעמך” (and if your brother, a Hebrew man, . . . is sold to you, he shall serve you six years, and in the seventh year you shall let him go free from you). I do not say [that a slave goes free after six years] unless he is your brother [an Israelite].

But it may be questioned why in Exodus the Hebrew slave is called a “עבד” but in Deuteronomy is called “אחיך” (your brother). And our master explains this by way of a further question, which is why in Exodus does the Scripture write “כי תקנה” (when you buy), implying that the transaction is contingent on the buyer’s decision, while in Deuteronomy the Scripture writes “כּי יִמכר לך” (if [he] is sold to you), implying that the transaction is contingent on the seller’s decision. However, the answer may be that in Exodus the Scripture speaks of one who cannot provide restitution for a theft and therefore is sold into servitude by the court. Thus, once a judgment that someone be sold into servitude is rendered, the thief is considered a slave as if he were already sold. Since it is then necessary only to wait for him to be bought, the transaction at that point is contingent only on the buyer’s decision. The Scripture therefore says “כִי תקנה” (if you buy). But in Deuteronomy, the Scripture refers to one who must, owing to his own indebtedness, sell himself into servitude. Thus, until he is actually sold, he remains free and must still be called your brother. The Scripture therefore describes the transaction as contingent upon his decision and writes “ימכר כי” (if he is sold) to underscore that the sale depends on his volition. (שביבי אש)

וכי יפתח איש בור או כי יכרה איש בר

If a man shall open a pit, or if a man shall dig a pit

Exodus 21:33

Rashi comments: Why is this stated? If one becomes liable for opening [a pit that already exists] how much the more is one liable for digging [a new one]. However [the words כי יכרה are intended] to include one who digs [i.e. deepens] a pit that another has already dug.

The G’RA explains that the word “בור” (pit) is written without the letter “ו” to show that the pit was at first not fully dug, and then the second person came and finished digging it. Our master added to these holy words by saying that it would have been more appropriate for the Scripture to have written “כי יכרה אישׁ קרקע” (if a man shall dig in the earth) instead of writing “כי יכרה איש בר” (if a man shall dig a pit), because there is no pit until after one digs into the earth. However, it must be that the Scripture was indeed referring to a situation in which one person dug deeper into a pit that another person had already dug and, by so doing, completed digging the pit. Thus, if the word “בור” had been written with a “ו,” one might have said that even if the pit had been completely dug by the first person [i.e., the pit had been dug to a depth of ten handbreadths, the minimum depth of a pit for which one would be liable to pay for damages] and the second person dug it even deeper, the second person would be the one liable for digging the pit, because his action would have superseded the action of the first person. But this is not the halakhah as the Talmud explains. Thus, the Scripture wrote the word “בור” without a “ו” to show that only if the pit was initially less than ten handbreadths deep and the second person completed it by digging to a depth of ten handbreadths is the second person liable for any damage caused by the pit. (שביבי אש)

מדבר שקר תרחק ונקי וצדיק אל תהרג

Keep far from a false matter; and do not slay the innocent and righteous

Exodus 23:7

In the Mekhilta this is understood to be a prohibition against speaking (לשון הרע) gossip. It appears that the Mekhilta did not want to interpret “שקר” (false) literally, so that the verse would be a prohibition against rendering a false judgment because the previous verse  “לא תטה משפט אביונך בריבו” (you shall not pervert the judgment rendered to your poor in his cause). However, it is still difficult to understand how the words “מדבר שקר” (a false matter) can refer to gossip, inasmuch as לשון הרע refers to the spreading information that is true.

Our master explains that the Mekhilta seems to be in accord with the saying of our Sages (Pesahim 113b) that the Holy One Blessed Be He hates three types of individuals, one of whom is a person who sees something indecent in his neighbor and who then testifies, by himself, against his neighbor, as happened with Tobias, who had sinned. Zigud came alone to testify before Rav Papa against Tobias, whereupon Rav Papa punished Zigud. Rav Papa certainly acted properly in disregarding uncorroborated testimony, because if the uncorroborated testimony of a single witness in court were believed, the life of every person would be at risk.

While it is certainly reasonable that the testimony of a single witness not be sufficient to inflict punishment on another person, one may nevertheless ask why the Eternal, who knows that the single witness did not testify falsely against his brother, should hate him for testifying alone? This question may be answered based on the remark of the Sages (Berahkot 19a) that if a scholar committed a sin at night, do not question his virtue the next day after, for perhaps he repented. To which the Talmud asks “perhaps?” and concludes, “rather, he has surely repented.”

Now the reason that the Talmud asks “perhaps?” is that if it were doubtful whether he repented of his sin, then why should one not question his virtue? The question about his virtue would appropriately reflect the doubt concerning whether he had repented. That is why the Talmud answers, “he has surely repented,” suggesting that there would be a doubt whether a person who is not a scholar has repented of a sin that he had committed, so that it would be permissible to question the virtue of such a person, though it would not be permissible to mention the transgression to others, because of the possibility that the person had indeed repented. Thus, if one observes another person committing any transgression over which a court has no jurisdiction, he may not tell anyone else that he saw the person commit a transgression, even if the observer knew about the transgression with the certainty of a hundred witnesses. And the Holy One Blessed Be He would hate him for telling others about what he saw, because the one who committed the transgression might have repented of it and atoned for it, in which case he has slandered his brother who is now a righteous person.

Rashi further explains that the second half of the verse, “ונקי וצדיק אל תהרג” (and do not slay the innocent and the righteous) refers to one who is innocent (נקי) even if he is not righteous (צדיק) and to one who is righteous even if he is not innocent. According to this explanation, the second half of the verse can be understood as the reason for the first half.  “מדבר שקר תרחק” (keep far from a false matter), for if one has been found to be righteous by the court, do not, even if you know that he is not innocent, consider him to be wicked, for perhaps he has repented. [Moreover, one who is righteous, but has sinned, will certainly have repented. Tr.] And in that case, it would indeed be proper to refer to לשון הרע (gossip) as false, because, having repented, he is now righteous, not wicked. (שביבי אש)

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