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SALT 2019 - Parashat Mishpatim

Rav David Silverberg
Motzaei Shabbat
            The Torah in Parashat Mishpatim presents several laws relevant to the situation of a loan, including the prohibition of “lo tiheyeh lo ke-nosheh” (22:24), forbidding the lender to act “like a creditor” towards the borrower.  Rashi explains: “…if you know that he does not have [money with which to repay the loan], do not think of him as though you lent to him, but rather as though you did not lend to him.  Meaning, do not embarrass him.”
            According to Rashi, this prohibition forbids causing humiliation to a borrower who is unable to repay his loan.  The Torah requires the lender in such a situation to act towards the borrower as if there is no outstanding debt, rather than applying pressure or otherwise causing the borrower embarrassment.
            It has been noted that the implications of this law extend far beyond the narrow context of the relationship between a lender and borrower.  Very often, a debtor who is incapable of repaying the loan had borrowed money irresponsibly, taking the loan without any strategy for repaying the money in the future.  Indeed, the Mishna in Pirkei Avot (2:9) tells that Rabban Yochanan ben Zakai asked his students to identify the single most “evil path from which a person should distance himself,” and one student, Rabbi Shimon ben Netanel, pointed to the practice of borrowing money without repaying.  It has been suggested that Rabbi Shimon’s answer is consistent with his remark mentioned earlier in that same Mishna, in response to Rabban Yochanan’s question, “Which is the approach to which a person should adhere?”  Rabbi Shimon responded, “Ha-ro’eh et ha-nolad” – the ability to foresee the consequences of one’s actions.  The opposite of this quality is reckless borrowing, accumulating debt without a plan of how to repay it. 
            It emerges, then, that at least in some instances, a borrower who cannot repay his loan finds himself in this situation because of his own irresponsible actions.  And yet, despite his guilt in causing this unfortunate circumstance, his debtor is required by the Torah to avoid humiliating him.  The Torah commands us to preserve the dignity of even those who are guilty of grave mistakes, and even when those mistakes have caused us harm.  Legitimate grievances do not justify subjecting somebody to embarrassment and humiliation.  The borrower in this situation made a mistake in the past which can no longer be reversed, and so the lender is not entitled to vent his frustration by embarrassing the borrower.  This command teaches us that people’s past mistakes do not justify humiliating them, even for those who have been hurt by those mistakes.  We are to be patient, tolerant and forgiving, and allow people to recover and grow from their mistakes without suffering embarrassment.
            Towards the end of Parashat Mishpatim, the Torah tells of the vision beheld by the leaders of Benei Yisrael at the time of the Revelation at Sinai: “They saw the God of Israel, and under His feet was the likeness of a sapphire brick, and purity like the essence of the sky” (24:10). 
            Rashi, citing the Midrash (Vayikra Rabba 23:8), explains why the image of a brick appeared next to God’s “feet” at this time.  He writes that the brick “was before Him at the time of bondage [in Egypt], in order to remember Israel’s distress, who were enslaved with brickwork.”  According to the Midrash, God is depicted here as keeping with Him an image of a brick during the period of Benei Yisrael’s enslavement in Egypt, when they were forced to produce bricks.  As is commonly explained, the Midrash here teaches the importance of empathizing with the plight of those in distress, how we must make an active effort to think of those enduring pain and injustice, to always be mindful that there are people who are suffering.
            Rashi then continues by citing the Midrash’s explanation of the other sight beheld at the time of the Revelation – “ke-etzem ha-shamayim la-tohar,” the beautiful vision of the pure “essence of the sky.”  This means, in Rashi’s words, that “once they were redeemed, there was joy and elation before Him.”  Just as God made a point of sharing, as it were, in Benei Yisrael’s pain as they suffered as slaves in Egypt, He likewise shared in their joy at the time of their redemption.
            Rav Yerucham Levovitz (in Da’at Torah) notes in this context that very often, it is more difficult to share in other people’s good fortune and success than in their pain and suffering.  Even when people warmly congratulate those who are celebrating a happy occasion, personal milestone or achievement, Rav Yerucham writes, they might feel a slight tinge of jealousy.  They themselves might be unaware of this feeling, but in many situations, it is sensed, to one extent or another.  When somebody we know enjoys a certain type of good fortune or success which we do not, it is often difficult to feel truly joyous over that individual’s happiness.  It is specifically for this reason, Rav Yerucham writes, that God is described as both empathizing with Benei Yisrael during their period of suffering, and celebrating with them during their period of triumph.  The Midrash teaches us of the importance of not only sharing the pain of those in distress, but also sharing the joy of those enjoying good fortune and success, and the need to overcome our instinctive feelings of jealousy and truly celebrate the happiness and achievements of other people.
            Parashat Mishpatim begins with a discussion of the eved ivri – a Jewish man working as an indentured servant to his fellow Jew.  The master is required to release the servant after six years of work, but the servant has the option to remain if he so desires.  The Torah writes that “if the servant says: I like my master…I will not go free” (21:5), then he undergoes a procedure outlined by the Torah and may then remain in his master’s service.
            The Mekhilta notes the seemingly repetitious phrase “amor yomar” used here by the Torah in reference to the servant’s expression of his desire to remain with his master.  This phrase, the Mekhilta comments, indicates that the servant must make this statement twice.  If he says only once that he likes his conditions of servitude and wants to remain, then he is not permitted to stay as a servant; this pronouncement must be repeated.  This point is discussed in greater detail by the Gemara in Masekhet Kiddushin (22a), which makes a different inference to establish that the servant must express his satisfaction twice.
            Meiri, in his commentary to the Gemara, explains that the reason for this law is to ensure that the servant makes his decision with a clear head and true resolve.  The Torah feared that the master might pressure the servant into expressing his contentment and his desire to remain, and so it stipulated that the servant must make this proclamation on two different occasions (the Gemara discusses when precisely these statements are to be made) to verify that he truly wishes to remain.  In a similar vein, Rav Moshe Najara, in his Lekach Tov commentary to the Mekhilta (cited in Torah Sheleima to this verse, note 102), writes that if the servant made this declaration just once, it might have been the result of a “ru’ach shetut” – a “spirit of foolishness” – which overcame him.  Since most people would naturally prefer a life of freedom over a life of servitude, we must view the servant’s desire to remain in servitude with a degree of suspicion until it is expressed more than once. 
            We sometimes convince ourselves that “ahavti et adoni” – “I like my master,” that we feel content and satisfied with an undesirable condition, when in truth we do not.  Like the servant, we might at times be overcome by a “ru’ach shetut” which tells us that our current circumstance is acceptable, due to the appeal of stability, the fear of change, the intimidating prospect of having to adapt to a new reality, or the comfort and convenience of familiarity.  The halakha requiring the servant’s repeated declaration of contentment perhaps reminds us to be skeptical of our own declarations of contentment, to carefully consider whether we are truly happy with the various states of “servitude” in which we find ourselves, or if perhaps we are better off changing our reality, as difficult and challenging as that process of change might be.
            The Torah in Parashat Mishpatim presents laws that impose limits on servitude, requiring masters to release their servants in various situations.  In the case of a Jewish servant (“eved ivri”), the master must release the servant after six years of work (21:2), though the servant then has the option if he so desires to remain with his master “forever” (21:6), which Chazal (as Rashi cites from the Mekhilta and Masekhet Kiddushin) understood to mean until the yovel (jubilee year).  A servant from outside the nation (“eved kena’ani”) is not released after six years, but must be immediately released if at any point his master mistreats him, causing him to lose an eye or a tooth (21:26-27).  The Gemara (Kiddushin 24-25), as Rashi references, clarifies that although the Torah mentions only the loss of an eye or a tooth, a gentile servant is set free if his master causes him to lose other body parts, as well.
            Keli Yakar (21:7) – whose writings frequently address the dangers of excessive preoccupation with the pursuit of wealth – sees in these laws an allusion to the “servitude” to materialism.  All people are, to one extent or another, “subservient” to money.  After all, in order to satisfy our physical needs and enjoy comfort, safety and security, we need to obtain adequate financial resources.  And so we willfully “subjugate” ourselves to the pursuit of wealth, each person in his or her own way.  The institutions of “eved ivri” and “eved kena’ani,” Keli Yakar suggests, present us with two drastically different models of release from this ubiquitous form of servitude.  The “eved kena’ani” represents those who are freed from this stifling subjugation only when they lose their “tooth” and their “eye” – their ability to enjoy physical indulgence (symbolized by the tooth, which is used for eating), and their ability to enjoy aesthetics (symbolized by the eye).  Such a person is enslaved to the relentless pursuit of wealth until he reaches a condition of frailty which does not allow him to enjoy the pleasures of wealth.  The “eved ivri,” by contrast, who goes free after six years of service, represents the privilege we have to be freed from our subservience to our material pursuits every week, after six days of work.  By strictly forbidding work on Shabbat, the Torah in effect relieves us of our work obligations for one day each week.  And thus even if during the six days we find ourselves, by necessity, “subservient” to the pursuit of wealth, on Shabbat we are freed from this form of “bondage” and are able to enjoy true freedom.
            Keli Yakar adds that the “eved ivri” is released either after six years of service, or on the yovel – the jubilee, which represents the Torah given to us fifty days after the Exodus.  Our “freedom” on Shabbat is experienced by way of the opportunity it affords us to devote time to Torah learning, to withdraw from our mundane pursuits and engage in the sacred pursuit of study.  Shabbat gives us freedom from material “subservience” so that we can find meaning and experience the joy and exhilaration of spiritual devotion, spending our time engrossed in Torah learning.
            The Torah in Parashat Mishpatim (23:19) introduces for the first time the prohibition against “cooking a kid in its mother’s milk,” which has been understood as forbidding basar be-chalav – cooking or eating meat with milk, or deriving benefit from such a mixture.
            The Gemara in Masekhet Bekhorot (6b) considers viewing this verse as the Biblical source for the permissibility of drinking the milk of a kosher animal.  Intuitively, we would have assumed that since the Torah forbids partaking of that which originates from something forbidden for consumption (like the milk of non-kosher animals, or eggs of a non-kosher bird), even milk from a kosher animal should be forbidden, since kosher animals are forbidden for consumption until they are slaughtered.  Since a cow’s milk, for example, is taken from a live cow, which is forbidden for consumption (as it is still alive), the milk, intuitively, should be forbidden.  As tradition allows drinking the milk drawn from a live kosher animal, there must be some Biblical source which establishes that such milk is permissible.  The Gemara briefly considers the possibility that the source of this law is the Torah’s prohibition against consuming milk with meat.  The clear implication is that milk on its own, without meat, is permissible, thus seemingly establishing the permissibility of drinking milk.
            However, the Gemara immediately dismisses this line of reasoning.  It notes that even if milk were forbidden for consumption, the Torah would still have needed to introduce the prohibition of basar be-chalav to teach the additional unique features of this prohibition.  As mentioned, the Torah forbids not only eating milk with meat, but also deriving other forms of benefit from such a mixture (like feeding it to one’s animal), and the very act of cooking milk and meat together.  Therefore, the fact that the Torah needed to introduce this prohibition does not necessarily prove that milk by itself is permissible for consumption. 
            A number of later writers questioned the Gemara’s initial line of reasoning, for various reasons.  One question that was raised is that even if milk itself were forbidden, the Torah would have still needed to introduce the law of basar be-chalav to forbid eating meat that had absorbed milk.  Rashi, commenting to Masekhet Chulin (98b), controversially posits that the principle of ta’am ke-ikar, which forbids eating food that had absorbed the taste of prohibited food, does not apply on the level of Torah.  According to Rashi, Torah law forbids the consumption of foods designated as prohibited, but does not forbid eating food that was cooked with such foods and thus absorbed their flavor.  This prohibition, in Rashi’s view, was enacted by Chazal.  According to Rashi, then, even if milk itself were forbidden, it would have been necessary for the Torah to forbid eating meat that had been cooked with milk, which would have otherwise been permissible for consumption.  The question thus arises as to how the Gemara initially suggested that the basar be-chalav prohibition proves the permissibility of milk.
            Among those who addressed this question was the Noda Bi-yehuda.  In one of his published responsa (Mahadura Tinyana, Y.D. 36), he suggests that Rashi stated his opinion only in explaining the view held by some Amoraim.  Rashi concedes, however, that others view ta’am ke-ikar as a Biblical provision, and it is thus possible that the Gemara here works within this latter position.  (In an earlier responsum (33), the Noda Bi-yehuda suggests a different answer.)
            Another answer was suggested by the Imrei Emet, the third Rebbe of Ger (cited in Ish Ha-eshkolot, p. 192).  Significantly, Rashi viewed ta’am ke-ikar as a rabbinic law with regard to all prohibitions except basar be-chalav.  The absorbed taste of milk in a piece of meat is forbidden on the level of Torah law even according to Rashi, because the Torah forbade eating a mixture of meat and milk “derekh bishul” – the way they would normally be cooked together, meaning, meat boiled in milk.  The Imrei Emet thus suggested that the challenge to the Gemara’s initial proposal noted above is included in the Gemara’s ultimate refutation of this proposal.  As we saw, the Gemara refuted this argument by noting that the Torah needed to introduce the basar be-chalav prohibition to add that meat and milk may not even be cooked together.  This aspect of the prohibition results in the notion of “derekh bishul,” which, as explained, yields the application of ta’am ke-ikar to meat cooked with milk, such that it is forbidden by virtue of the flavor of milk which it had absorbed.  And thus, indeed, this challenge is in fact part of the Gemara’s reasoning in rejecting its initial suggestion.
            Yesterday, we noted the Gemara’s discussion in Masekhet Bekhorot (6b) regarding the Biblical source for the permissibility of milk drawn from a kosher animal.  As even kosher animals are forbidden for consumption until they are slaughtered, we would have intuitively forbidden their milk, in light of the rule that anything originating from something forbidden is itself forbidden (“ha-yotzei min ha-assur assur”).  Therefore, there must be some source in the Torah for the permissibility of milk.  The Gemara cites several Biblical sources for permitting the consumption of milk, after first unsuccessfully trying to suggest that the source is the prohibition against consuming basar be-chalav – meat together with milk.  The premise of the prohibition is that meat and milk are independently permissible, and thus this prohibition seemingly provides us with a source for allowing the consumption of milk.  The Gemara ultimately rejects this line of reasoning (as we discussed yesterday).
            A number of writers raised the question of why the Gemara did not point to a different verse – the command in Parashat Mishpatim (22:29) to offer a male firstborn kosher animal as a sacrifice.  The Torah writes that after the birth of such an animal, “it shall be with its mother for seven days, and on the eighth, you shall give it to Me.”  An animal may not be brought as a sacrifice during its first week of life, but should rather remain with its mother – presumably, to nurse – for seven days and then be offered as a sacrifice.  This means that the Torah permits – and in fact, requires – offering as a sacrifice an eight-day-old animal that had spent its first week of life nursing from its mother.  Seemingly, this should prove that milk is permissible for consumption.  The Rama (Y.D. 60:1) rules that an animal which has been fed exclusively non-kosher food – for example, if its mother was a tereifa (forbidden for consumption due to a fatal condition), and it had consumed nothing but its mother’s milk – is forbidden for consumption.  If such an animal may not be eaten, it is certainly forbidden to be brought as a sacrifice.  Hence, as the Torah speaks of a newborn animal spending its first seven days of life with its mother and then being offered as a sacrifice on the eighth day, we can, seemingly, prove that milk of a kosher animal is permissible for consumption.  Newborn mammals during the first week of life are generally nourished exclusively from their mother’s milk, and thus if the Torah permits an eight-day-old animal as a sacrifice, this would seem to prove that milk is permissible.  Why, then, did the Gemara not cite this verse as a source for the permissibility of consuming milk?
            One possible answer is suggested by Rav Hersh Yaar, in his Chamudei Tzvi (Parashat Mishpatim), where he distinguishes between two types of prohibitions relating to the consumption of food.  Some foods, such as the meat of a neveila (carcass of an animal that did not undergo halakhic shechita) or a tereifa, are forbidden because they are deemed unfit for consumption by members of God’s special nation.  In some cases, however, the opposite is true – food is forbidden because we are not worthy of partaking of such food.  For example, tradition teaches that before the flood, human beings were not allowed to eat animal meat, even from kosher animals that were properly slaughtered.  This prohibition stemmed not from the “lowly” stature of the meat, but rather from the fact that mankind at that point was deemed unworthy of partaking of animals.  (Some explain that after Noach rescued the animal kingdom during the flood, human beings were then worthy of eating animals.)  Rav Yaar explains that foods in this second category are allowed to be offered as sacrifices, even though they are forbidden for consumption.  And thus tradition teaches that Adam offered an animal sacrifice to God, even though animals at that point were forbidden for human consumption.  Since this prohibition stemmed from the unworthiness of human beings, and not the lowly quality of the animal, the animal was fit for use as a sacrifice.  (Rav Yaar cites this insight in the name of Rav Mendel of Radzymin.)
            Rav Yaar applies this line of reasoning to the status of milk.  If milk had been forbidden for consumption, due to its having been taken from a live animal, this would not have been a function of its lowly quality, of its being unfit for consumption by God’s chosen people.  Rather, this would have been a function of our unworthiness of partaking of something produced by a live creature.  As such, even if milk had been forbidden for consumption, it would have been suitable as far as sacrifices were concerned, such that an animal that had been nourished exclusively by its mother’s milk would not have been disqualified as a sacrifice.  Therefore, the fact that the Torah mandates the offering of a firstborn animal on its eighth day of life does not prove that milk is permissible for consumption.
            The Torah in Parashat Mishpatim addresses the case of a lender who granted a loan to a pauper, and took his garment as security.  Although the lender wants to keep this garment to ensure that the debt will be repaid, the Torah requires him to return the garment to the pauper by sundown each day, explaining, “For it is his garment for his skin – what shall he sleep with? – and if he cries out to Me, I will hear [his cries], for I am compassionate” (22:26).
            The final clause of this verse – “if he cries out to Me, I will hear…” – is likely a warning to the lender of the repercussions of his insistence on keeping the pauper’s garment with him overnight.  Earlier (22:22-23), the Torah issues a similar warning to those who take advantage of widows and orphans who have no husband or father to protect them, assuring that if the victim cries out to God, He will harshly punish the guilty party:  “My rage shall be incensed, and I will kill you by the sword, such that your wives will be widows, and your children, orphans.”  It appears that here, too, even though the lender is, technically speaking, fully entitled to demand collateral and keep the garment with him until the loan is repaid, God will respond harshly to his cruel refusal to return the garment to the pauper at night so he can be warm.  Ibn Ezra adds that just as in the case of the widow or orphan, where God warns that He will turn the guilty individual’s wife into a widow and his children into orphans, similarly, in this instance, God warns that He will make the lender impoverished such that he will need to rely on loans and charity.
            Significantly, God concludes His warning by noting His attribute of compassion: “I will hear [his cries], for I am compassionate.”  The simple meaning of this phrase, seemingly, is that God will pity this impoverished pauper who is cold at night because he was forced to surrender his garment or blanket to the lender, and will thus act to punish the lender.  Indeed, the Rashbam explains that although the pauper does not have a legally valid claim against the lender, nevertheless, God’s infinite compassion for people’s suffering will not allow Him to ignore the pauper’s plight.
            The Ramban, however, explains differently.  He writes that the lender might justify his cruelty on the basis of the pauper’s character and conduct.  Unless the borrower is an especially righteous person, the lender might think, there is no reason to fear God’s reaction.  If the pauper was righteous, then the lender is more likely to go beyond the strict letter of the law and return the collateral, figuring that God will act on the pious borrower’s behalf.  But otherwise, the lender might assume that the borrower does not deserve such generosity, and God does not demand that he go this far, especially after he already agreed to grant the pauper a loan.  God therefore warns the lender, “I will hear [his cries], for I am compassionate” – that He will hear the cries of any borrower in this situation, regardless of his level of piety.  In the Ramban’s words, “I am compassionate, and I hear the cry of everyone who pleads to Me.” 
            According to the Ramban, then, the Torah here demands that we extend ourselves for the sake of people in dire straits regardless of whether we consider them worthy of our assistance.  God Himself is compassionate “to everyone who pleads” to Him, even if they are not especially righteous, and so we, too, must show compassion to all who need help, without arrogantly trying to determine on our own whether they deserve our compassion.  When our help is needed, we must offer it, following the example set for us by the Almighty Himself.

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