SALT 2018 - Parashat Mishpatim
In memory of Sondra Schwartz (שבע שיינדל בת דוד) z"l
dedicated by her son Dr. Avi and Sara Schwartz
dedicated by her son Dr. Avi and Sara Schwartz
The Torah in Parashat Mishpatim addresses the case of one who sees his enemy’s animal buckling under a load that was placed upon it which it is incapable of bearing. Although one might instinctively prefer to ignore the animal’s plight, as it belongs to somebody whom he dislikes, the Torah commands, “azov ta’azov imo” (23:5) – that he must lend his enemy assistance.
There is some discussion among the commentators regarding the Torah’s formulation of this comment. The familiar root a.z.v. means “leave” or “abandon,” whereas here, as Rashi, the Rashbam and others note, it appears to be used to mean “assist,” as in the root a.z.r. A different explanation of this verse appears in Targum Onkelos, who translates it to mean that one must abandon the feelings of hostility that he harbors towards the animal’s owner. According to Onkelos, then, the phrase “azov ta’azov” indeed means “abandon,” and not “assist,” and refers to the abandonment of feelings of animosity.
Returning to the common understanding, that “azov ta’azov” means “assist,” why would the word that normally refers to abandonment also be used to refer to lending assistance? Is this not the precise opposite of abandonment?
A meaningful answer to this question is offered by Rav Tzvi Weimgarten, in his Zikhron Binyamin Zev. He writes that the use of the root a.z.v. to mean “assist” serves to allude to the fact that sometimes, we are more helpful by “leaving” than we are by getting involved. For example, some people in times of difficulty or distress prefer being alone than being in the company of even sincere, well-meaning peers. Additionally, offering assistance can sometimes lead to shame and humiliation, causing greater harm than is caused by the problem one seeks to solve. (Rav Weingarten cites as an example the story told in Masekhet Chagiga (5a) of somebody who gave charity to a needy individual in the market, in public view. The donor was reprimanded for embarrassing the recipient, and was told that he would have done more for the pauper by giving nothing than by giving him a donation in public, causing him shame.) And, very often, our strong, sincere desire to offer assistance leads us to get involved in ways which are not actually helpful. The fact that we want to help somebody in need does not always mean that we can. On some occasions, then, the greatest help we can give is by standing to the side and not getting involved.
It is perhaps significant that this usage of the verb a.z.v. appears specifically in the context of the Torah’s command to lend assistance to somebody whom one dislikes. In such a situation, one’s instinctive reaction might be to assume that he is not really in a position to help anyway, such that he might as well abandon the person in need. In this particular scenario, the message of “a.z.v.” – that sometimes one helps more by leaving the person in need – can tempt a person to excuse himself from lending assistance which he is fully capable of providing. The Torah here indicates that although there are, indeed, situations in which “abandonment” is preferable to involvement, when this is not the case, one must make a proactive effort to help even those whom he does not necessarily like. The phrase “azov ta’azov” in this verse thus points to the need for honesty and common sense in deciding when to lend assistance and when to stay to the side; when we should step forward to help others even when we feel uncomfortable doing so, and when the person in need is better served by our inaction.
The Torah in Parashat Mishpatim introduces the prohibition against causing distress to a widow or orphan, and issues an especially stern warning to those who violate this law: “If you do oppress him – then when he cries out to Me, I shall assuredly heed his cry. My anger will be roused, and I will kill you by the sword such that your wives will be widows, and your children, orphans” (22:22-23). God warns that if a widow or orphan cries out to Him upon suffering mistreatment, He will respond harshly and punish the offenders.
Rav Moshe Alshikh notes that this warning appears to call into question the Gemara’s comment in Masekhet Bava Kama (93a) condemning “ha-moser din al chaveiro” – one who calls upon God to punish his fellow for a perceived offense. A person who asks God to punish somebody, the Gemara states, is himself punished. The Gemara cites as its source the tense exchange between Sara and Avraham after Sara had Avraham marry her maidservant, Hagar, and she conceived. Hagar began treating Sara disrespectfully, and Sara, in her frustration, cast the blame on Avraham and angrily said, “May the Lord judge between you and me” (Bereishit 16:5). In the end, Sara died many years before Avraham, demonstrating that somebody who asks God to bring retribution upon another person receives punishment himself. Seemingly, the Alshikh writes, this is precisely what is happening in the case described here in Parashat Mishpatim, when a widow or orphan cries out to God in response to the torment he or she suffers. And yet, in such a situation, God promises to accept the victim’s cry and visit retribution upon those who oppressed the widow or orphan. Why is this instance different from any other situation of “ha-moser din al chaveiro”?
The Alshikh answers that God is the “father of orphans and judge of widows” (Tehillim 68:6), and this special relationship accounts for His special response to their cries when they are victimized. God here says that He becomes the “father” for these vulnerable members of society, and He therefore listens to their cries. An exception is made when widows and orphans are victimized because God has a special relationship with them. As they do not have a husband or father to help them upon whom they can rely, God Himself assumes this role, so-to-speak, and this special bond compels Him to accept their pleas to punish those who take advantage of them.
This concept is relevant, on one level or another, not only to widows and orphans, but to all of us in times when we feel alone, afraid and vulnerable. As the verse in Sefer Yeshayahu (57:5) teaches, God resides, so-to-speak, specifically alongside “daka u-shfal ru’ach” – those who experience pain and distress. When a person feels vulnerable, that he or she has nobody on whom to rely and whom to trust, God promises that He “resides” near that person and eagerly listens to his or her cries. This knowledge should provide a degree of solace and comfort in times of fear and anguish, assuring us that even when we feel abandoned and helpless, God is by our side and hearing our prayers.
The Torah commands in Parashat Mishpatim (22:27), “Elohim lo tekalel.” The Mekhilta cites two views as to whether the word “Elohim” in this verse refers to God, such that the Torah here introduces the prohibition against blasphemy, or refers to judges, and forbids cursing a judge. These two views also appear in the Gemara, in Masekhet Sanhedrin (66a), which concludes that according to both opinions, these two prohibitions are sourced in this verse. Whether the Torah refers here to God or to judges, the fact that one is prohibited indicates that the other is, as well. Indeed, Rashi, in his commentary to this verse, explains that the Torah here forbids both cursing God and cursing judges, and the Rambam cites this verse as the source of both prohibitions (cursing God – Hilkhot Avoda Zara 2:8; cursing judges – Hilkhot Sanhedrin 26:1).
Several of the classic commentators embraced the position that on the level of peshuto shel mikra (the simple reading of the text), the Torah refers here to judges. This is the view of Seforno, who writes, “Even if you think that the judge unfairly ruled against you, do not curse him, for a person does not see his own guilt.” According to Seforno, the Torah here forbids an angry litigant from cursing the judge who ruled against him, even if he is convinced that the judged erred. The reason for this law, Seforno explains, is because every litigant believes in his innocence, and his natural biases do not allow him to consider that his position is wrong. Therefore, the Torah forbids cursing a judge out of resentment for what the litigant perceives as an incorrect ruling.
According to Seforno’s explanation of this verse, the Torah here conveys a crucial message that extends well beyond the narrow context of litigants and judges. It teaches that whenever we find ourselves judged critically by another person, we mustn’t rush to defend ourselves and condemn the critic. Our natural biases make it difficult to judge ourselves with strict impartiality, and thus lead us to instinctively deflect criticism and resent those who express it. The Torah here commands us not to “curse” our “judges” even if we feel their “judgments” are unfairly critical. Other people’s criticism, while not always accurate, often helps to provide a more honest, more accurate assessment of ourselves, which can only help us in what should be our lifelong effort to work towards improvement and reaching greater achievements.
The Torah commands in Parashat Mishpatim, “…nasi ve-amekha lo ta’or” – that it is forbidden to curse a “nasi” (22:27). This prohibition is generally interpreted as forbidding cursing a king, and according to the Rambam (Sefer Ha-mitzvot, lo ta’aseh 316; Hilkhot Sanhedrin 26:1), it refers both to a king and the leader of the Sanhedrin.
A much different interpretation of this command is offered by Chizkuni, who suggests that the Torah in this verse continues its discussion began in the previous verses regarding the case of one who lends money to a pauper. The Torah commands that if the lender takes the pauper’s garment as collateral, he must return it to the borrower each night so the borrower can wrap himself with it as he sleeps. According to Chizkuni, the prohibition against cursing a “nasi” refers to cursing a wealthy lender who takes the destitute borrower’s garment as a collateral. The borrower might resent the fact that this wealthy fellow insisted on taking collateral, rather than simply trusting – or at least pitying – the borrower who face grave financial hardship. Resenting the lender, Chizkuni explains, is wrong, “for he has, after all, benefitted him with his property.” The wealthy lender did a favor for the needy borrower by extending to him a loan, and thus he deserves gratitude and respect. Even if the borrower feels that it was inappropriate for the lender to demand collateral, nevertheless, he should feel grateful, and not resentful.
According to Chizkuni’s interpretation, the Torah here instructs that we should focus our attention on our debt of gratitude owed to other people, rather than on their faults and shortcomings. The borrower may indeed be correct that the wealthy lender should have simply extended the loan – with money which for him is clearly expendable – without insisting on taking collateral. Nevertheless, the Torah expects the borrower to feel grateful for the favor that was done, not resentful for the greater favor that was not done. And this is true of all the people in our lives who resemble this lender – who do a great deal for us, though we often feel they could do more or do it better. Whether it’s family members, professional colleagues, employers, employees, neighbors or friends, there are many people who help us in many different ways, but we nevertheless occasionally feel some degree of resentment towards them because of certain grievances. The Torah here teaches us that even if those grievances are valid, we should still feel appreciation and gratitude, and not resentment. We should appreciate all that is done for us, rather than complain about what was not done for us, and always try to focus our attention on other people’s kindness and virtue, rather than on their flaws.
The Midrash Tanchuma, introducing Parashat Mishpatim (21:2), cites the verse in Mishlei (29:4), “Melekh be-mishpat ya’amid aretz ve-ish terumot yehersena” – “A king supports the land with justice, and a deceitful man destroys it.” The simple meaning of this verse is that when “mishpat” – justice – abounds, the society is “supported” and sustained, living in peace and harmony, whereas a country characterized by corruption and crime will experience ruin. The Midrash, however, explains this verse as referring to two different types of people. One is a person who conducts himself with “mishpat” – a lifestyle which the Midrash does not define – and the other is somebody who lives like “teruma” – the consecrated portion of grain which is set aside and placed in the corner of the home until it is given to a kohen. An “ish terumot,” the Midrash explains, says to himself, “Why do I want the burdens of the community? Why do I want their laws? Why should I listen to them? I shall live in peace.” Such a person, the Midrash concludes, “destroys the earth,” and thus the verse in Mishlei teaches, “ish terumot yehersena.”
To illustrate its point, the Midrash tells the story of Rabbi Assi who wept while lying on his deathbed. His nephew asked him why he was weeping, as he certainly earned his share in the next world through the vast amounts of Torah he studied and taught, all his fine character traits, all the kindness he performed, and his insistence throughout his life never to receive a formal leadership appointment.
“For precisely that I weep,” the sage replied. “Perhaps I will be called into account because I was capable of serving as a judge over Israel.”
The Midrash here seeks to instruct that Torah scholars must be engaged with, and not withdrawn from, the rest of the people. As Rav Yehuda Leib Ginsburg explains in his Yalkut Yehuda, the portion of grain designated as teruma needed to kept isolated in order that it be protected from tum’a, sources of ritual impurity. Employing this metaphor, the Midrash seeks to dispel the possible misconception that Torah figures should be kept isolated, protected and withdrawn, in order that they remain pure and untainted. The truth is that to the contrary, Torah scholars must be fully involved in “mishpat” – in applying the Torah’s ideals to everyday, mundane life. Parashat Mishpatim, which the Midrash here introduces, addresses all kinds of rather unpleasant and unholy situations and conflicts that arise, such as property disputes, physical violence, theft, murder, and disadvantaged members of society who suffer abuse. The Midrash points to this parasha as evidence of the fact that the Torah is not “teruma” – sacred property that must remain separate and withdrawn from normal life. Torah specifically belongs in the marketplace, in the conflicts between neighbors, between lenders and borrowers, and between criminals and victims. The objective of Torah scholarship is to uplift mundane life, not to remain isolated from it.
We might ask, however, why does the Midrash speak of an “ish terumot” – a withdrawn, isolated scholar – as “destroying the earth”? While we understand the importance of applying Torah to everyday life, rather than keeping it away from everyday life, why does the Midrash go so far as to warn of “destruction” when Torah scholarship is kept withdrawn from the realm of the mundane?
The answer, perhaps, is that isolating Torah from ordinary life conveys the dangerous, and indeed, destructive, message that Torah is incompatible with ordinary life. If scholars become like “teruma,” and withdraw from the rest of society, then they are implicitly proclaiming that Torah is relevant only in the proverbial Ivory Towers, and has no application anywhere else. The Midrash, noting the content of Parashat Mishpatim, emphasizes the vital role that Torah scholarship is meant to serve in refining, enhancing and elevating ordinary, mundane life, and warns of the repercussions of keeping it isolated from ordinary, mundane life, leaving it unredeemed and without any connection to the lofty ideals of the Torah. We “destroy” our society if we keep Torah separate and isolated from our society, rather than applying the Torah’s values and teachings to make society better.
One of the laws presented in Parashat Mishpatim is “lo tiheyeh lo ke-nosheh” (22:24), which forbids acting “like a creditor” towards one’s debtor. Rashi explains this to mean that if a lender knows that the borrower is unable to repay the loan, he may not apply pressure or cause the borrower humiliation. This is based on the Gemara’s comments in Masekhet Bava Metzia (75b) that this verse forbids a lender from intentionally appearing before the borrower to remind him of the loan which he is unable to pay. Likewise, the Rambam writes in Sefer Ha-mitzvot (lo ta’aseh 234) and in Hilkhot Malveh Ve-loveh (1:2) that the Torah here forbids a lender from requesting the due payment of his loan if he knows that the needy borrower is unable to repay. Accordingly, the Shulchan Arukh (C.M. 97:2) rules, “It is forbidden to pressure the borrower to repay if he [the lender] knows that he does not have [with what to repay], and it is forbidden even to appear before him, because he is ashamed when he sees the lender and he cannot afford to repay.” (In the next passage, the Shulchan Arukh adds that it is also forbidden for the borrower to falsely claim the inability to repay when he is in fact able to.)
The Minchat Chinukh (67) raises the question as to whether claiming a debt is forbidden if the lender is uncertain whether the borrower has the means of repaying. Does the Torah forbid claiming a debt only when the lender knows for certain that the lender cannot afford to pay, or even if such a possibility exists but has not been confirmed?
The Minchat Chinukh initially suggests applying to this case the famous rule of “safeik de-orayta le-chumra,” which requires following the stringent possibility in situations of halakhic doubt involving a Torah law (as opposed to a law enacted by Chazal). Since the possibility exists that the debtor does not have the money to repay the loan, in which case claiming the loan transgresses a Torah prohibition, it stands to reason, at first glance, that the lender must refrain from claiming the loan. However, the Minchat Chinukh then notes the Shulchan Arukh’s formulation in codifying this prohibition, forbidding claiming a loan “if he knows that he does not have” money to repay – implying that the prohibition applies only if the lender knows for certain that the borrower does not have the money. The Minchat Chinukh therefore proposes that the Torah prohibition is perhaps inherently limited to a situation where the lender knows for certain that the borrower is incapable of repaying, because otherwise, lenders would be barred from claiming their loans in the majority of cases. People are not fully aware of the financial condition of other people, and thus there is always, or at least often, some possibility that a borrower is incapable of repaying. Therefore, it is only when the lender knows for certain that the borrower lacks the funds he needs that he is forbidden from claiming his loan.
Rav Moshe Mordechai Karp, in his Va-yavinu Ba-mikra, notes that there is a simpler basis for reaching this conclusion. The Sefer Ha-chinukh, in discussing this prohibition, writes that one transgresses this law when he claims a loan from a borrower who he knows is unable to pay “in order to cause him distress” (“kedei le-tza’aro”). The very definition of this prohibition is intentionally causing the borrower anguish and shame by claiming the loan which he cannot repay. If the lender claims the loan thinking that the borrower may have the means of repaying, then he is not claiming the loan in order to cause the borrower pain and distress, but in the hope of retrieving the money owed to him. As such, this is entirely permissible. This law, by definition, is inapplicable unless the lender knows for certain that the borrower cannot repay, because this law is defined as forbidding claiming a loan solely for the purpose of causing the borrower anguish and humiliation. As long as the lender genuinely believes that the borrower might have the means of repaying, then there is a legitimate purpose served by confronting the borrower and asking for the money, and thus doing so is permissible.
Yesterday, we discussed the prohibition introduced in Parashat Mishpatim (22:24) of “lo tiheyeh lo ke-nosheh,” which has been understood as forbidding claiming a debt if one knows that the borrower is unable to repay. This prohibition is codified by the Shulchan Arukh (C.M. 97:2), who writes, based on the Gemara (Bava Metzia 75b), that if the lender knows that the borrower does not have money with which to repay the loan, he may not even intentionally appear before the borrower, as this causes him shame. We also noted the comments of the Sefer Ha-chinukh (67) indicating that the prohibition is defined as intentionally seeking to cause the borrower pain and anguish. If the lender knows that the borrower is unable to repay, then approaching him serves no practical purpose whatsoever other than embarrassment and intimidation, and for this reason, it is prohibited.
In light of the Sefer Ha-chinukh’s comments, it would appear that this Torah prohibition has broader implications beyond the narrow context of loans. Whenever we demand or even ask something of a person which lies beyond his capabilities, we cause him to feel inferior and insecure. Every such request reinforces in that person’s mind his limitations, and thus causes a degree of anguish and frustration. Thus, the Torah prohibition against claiming a loan knowing that the lender cannot repay perhaps conveys a broader warning against asking things from people which we know they are incapable of, as this causes them pain and aggravation.
A common form of this violation is harsh reactions to people’s mistakes and indiscretions. Too often, we subconsciously demand or expect perfection from the people in our lives – such as family members, coworkers, neighbors and friends – and we thus resent their faults and their mistakes. The prohibition of “lo tiheyeh lo ke-nosheh” warns us not to harbor unrealistic expectations, to recognize that all people are, in one sense or another, “poor” – limited in their abilities, plagued by certain flaws, and error-prone. Just as it is wrong to demand payment from a borrower which he cannot repay, so it is wrong to demand from people strict standards of perfection that they cannot maintain. In all our interpersonal dealings, we must take people’s imperfections and limitations into account, and ensure not to demand more of them than can fairly and realistically be expected.
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