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  • Terri Krivosha

Dvar Torah for Parshat Mishpatim :: February 10, 2024

Parshat Mishpatim is a favorite of mine, and probably other lawyers as well. The parsha is replete with laws and for someone like me it was hard to choose what to talk about. 

There are many debates among biblical scholars and legal scholars about whether the laws are set out in today’s parsha in a specific order or are more random. The covenant code of this parsha, as it is called, contains criminal law, civil law, laws against death to people, death to animals, and other laws. There are many questions scholars raise about whether the order makes sense, was it haphazard or thought through. Do today’s laws mirror the laws in the covenant code, etc. 

Like the answer any good lawyer will give you to many questions, the answer to whether there is an order that makes sense to us in Parshat Mishpatim, is “it depends”. And there any many commentators that try to sort through the categories, organizing them, giving them sense, and rearranging the order, and there are others who throw up their hands and say there is no order to the Covenant Code at all: it's random-- just a bunch of laws. To me it seemed that the order was the way my checks were organized back in the day when we used to get hard copies of them at the end of the month Sort of in order but not exactly…. In any event I am going to leave that question unanswered today . 

Instead, given that our daf yomi cycle is now in Bava Kamma, I want to focus on three verses in the covenant code of today’s parasha that deal with the goring ox.

Chapter 21: verses 28, 29 and 30. 

וְכִֽי־יִגַּ֨ח שׁ֥וֹר אֶת־אִ֛ישׁ א֥וֹ אֶת־אִשָּׁ֖ה וָמֵ֑ת סָק֨וֹל יִסָּקֵ֜ל הַשּׁ֗וֹר וְלֹ֤א יֵאָכֵל֙ אֶת־בְּשָׂר֔וֹ וּבַ֥עַל הַשּׁ֖וֹר נָקִֽי׃ 

When an ox gores a man or a woman to death, the ox shall be stoned and its flesh shall not be eaten, but the owner of the ox is not to be punished. 

וְאִ֡ם שׁוֹר֩ נַגָּ֨ח ה֜וּא מִתְּמֹ֣ל שִׁלְשֹׁ֗ם וְהוּעַ֤ד בִּבְעָלָיו֙ וְלֹ֣א יִשְׁמְרֶ֔נּוּ וְהֵמִ֥ית אִ֖ישׁ א֣וֹ אִשָּׁ֑ה הַשּׁוֹר֙ יִסָּקֵ֔ל וְגַם־בְּעָלָ֖יו יוּמָֽת׃ 

If, however, that ox has been in the habit of goring, and its owner, though warned, has failed to guard it, and it kills a man or a woman—the ox shall be stoned and its owner, too, shall be put to death. 

; יוּשַׁ֣ת עָלָ֑יו וְנָתַן֙ פִּדְיֹ֣ן נַפְשׁ֔וֹ כְּכֹ֥ל אֲשֶׁר־יוּשַׁ֖ת עָלָֽיו׃ 

If ransom is imposed, the owner must pay whatever is imposed to redeem the owner’s own life.

So let’s begin by looking at the first two sentences of this triad for a moment.

  1. The first sentence indicates that the owner of an ox that kills a person is not held responsible for the ox’s actions; the ox itself is stoned and the owner does not pay damages.

  2. The second sentence says that, If, on the other hand, the ox is in the habit of goring, and the owner doesn’t take precautions for restraining the ox, then the owner becomes liable for the damages or death it may cause.

Seems simple enough. 

But the Talmud, not surprisingly, had a problem with this sequence. They notice a contradiction in the biblical laws right away. As we read, an ox that that kills a human being is stoned. Although the language in the Torah doesn’t say when the ox is stoned, the rabbis in the Talmud assume that the ox is put to death while it is still considered an innocuous or tam ox. A fair assumption. And the rabbis also say that an ox who has been warned at least three times regarding killing an animal or an individual is considered forewarned and there are other laws and consequences that apply. This means that the first ox is a what the Gemara calls an “innocuous ox or a tam ox” and the second ox is considered a “forewarned ox or a muad ox”. Again, seems simple enough. But have you ever wondered, if the ox in the first sentence is put to death while it was still a tam or innocuous ox, then how could an ox ever have done something to be considered “forewarned”. In other words, how did an ox who was still a tam ever survive killing an individual or an ox but not be stoned to death before it could do more damage and become a muad ox?

Bava Kama 41A asks this issue directly. 

גְּמָ׳ וְכִי מֵאַחַר דְּמִתָּם קָטְלִינַן לֵיהּ, מוּעָד הֵיכִי מַשְׁכַּחַתְּ לַהּ? 

The Gemara asks: But since we kill the ox for killing a person when it is still considered innocuous, how can you find a case of a forewarned ox killing a person?

As you can imagine, the rabbis of the Talmud had a field day answering this question. 

Rabba says that we are talking about three times where the ox could have killed a person had the person not been able to escape, an attempted killing. And according to Rabba, the ox would not have ever killed an individual but you would have been considered it to be“forewarned” because of its attempt to kill. 

Rav Ashi disagrees and argues that attempted gorings don’t count and here we are talking about a case where the ox endangered the lives of the three people by goring them and they all died, but only after the third goring. So in the event that this unlikely scenario occurred, the ox would be guilty of three deaths.

Rav Zevid comes up with a different and perhaps more convincing explanation. He suggests that the Mishna is talking about a situation where the ox gored three animals, thus became forewarned and then killed a person. Unfortunately, earlier in the masechet, the rabbis set up a rule that an ox is only forewarned with respect to one category at a time. For example, if the ox killed a lamb, it is only forewarned regarding lambs and is considered tam with respect to everything else. 

The bottom line is that the rabbis were not particularly interested in finding a way that an ox would become forewarned. Because if that was the case and the ox killed a human being, then the owner of the ox was required according to verse 28 in our parsha to be put to death.

Damages caused by an ox in our world are called torts. A tort is an act or omission that causes harm to person or property. In our case the damages for a shor tam who gored a human to death is that the ox is stoned, its flesh cannot be eaten, and the owner of the ox is not put to death. 

Think about this for a minute. The owner of the ox did not kill the human being; his ox did. What is being discussed here in the Torah and later by the Talmud is the liability of the owner of the ox for an action taken by the ox. 

Regarding a shor tam, the owner bears no liability to the third party for the harm done by the ox. Regarding a shor muad, the owner bears liability for the harm done by the ox. 

Here we mean that the owner of the ox who is a muad ignored the foreseeable risk that his ox created and disregarded the life and safety of others. The Torah indicates that the owner of the ox is put to death. 

However in the next sentence in the Torah, there is an exception that then commutes the death sentence rendered on the owner whose muad ox kills an individual, into a ransom payment. The Torah seems to say here that the extinction of a human life can be assuaged by paying a fine to the heirs of the individual who was killed. This is the only time in the Torah where a party who is otherwise subject to death can pay his way out of the verdict. 

In the Torah’s granting of a ransom here there is no damage payment for the victim (i.e., the victim’s heirs), but instead the ransom amount is given to the heirs and frees the defendant from death. Why wouldn’t the family of the individual killed by the goring ox also receive damages and not just the ransom payment?

First of all, the rabbis of the Talmud had a hard time with the optionality of the Torah: death or payment of a ransom, presumably decided by a court. So they made the ransom payment a requirement: in the event a muad ox killed a human being, there would be a ransom payment. 

In Bava Kamma 43B the Talmud discusses:

Why is the payment called a ransom instead of a compensation? There is a discussion that the damages resulting from the killing of the individual by the muad ox is subject to the jurisdiction of the court of heaven and not the court on earth. If the payment is considered damages, according to the rabbis, the liability of the owner of the muad ox wouldn’t survive the death of the owner of the ox, so they had to call the payment a fine, or kofer. And the owner of the ox would be judged by the heavenly court upon his death. In a way, the ransom and requirement to make the payment is a way that the rabbis didn’t just ignore the issue—but designed a way for the courts on earth to prosecute the individual for the wrong he has done without killing the owner for his role in causing the death of another individual.

This is what do we learn from the muad ox. The owner of the muad ox knew that the ox was a threat to others, yet didn’t do anything to mitigate that threat. The parsha says in verse 36:

א֣וֹ נוֹדַ֗ע כִּ֠י שׁ֣וֹר נַגָּ֥ח הוּא֙ מִתְּמ֣וֹל שִׁלְשֹׁ֔ם וְלֹ֥א יִשְׁמְרֶ֖נּוֹּ׃ {ס}         

If however it is known that the ox was in the habit of goring and its owner has failed to guard it.

The liability rests with the owner because of the owner’s failure to mitigate the risk. The owner knew of the risk yet did nothing to prevent potential harm. 

The lesson of the Shor Muad is certainly one regarding individual liability. However, I also began to think about the Shor Muad as a symbol of our knowing about a potentially dangerous situation that may impact the general community and our doing nothing to prevent it. Are we as a community potentially responsible for the harm that it caused. 

It is this lesson that my husband Hayim and I applied when we went to Israel for three weeks at the beginning of January. We believed that it was our responsibility to help the people of Israel to repair the harm that has been caused by the war.

We arrived on January 1 on an El Al flight filled almost exclusively with Israelis and landed in an almost empty airport to large pictures of each of the hatufim that filled the halls of the airport. What is often a lively experience was somber and quiet. 

We arrived to our apartment in Jerusalem. One of the hatufim’s family is from our neighborhood. The first sight before we entered our apartment was a big sign in English that read, “Bring Hersh home.” 

We saw a Jerusalem that was almost devoid of men between the ages of 19 and 55. They were all serving in the army. We saw grandparents with grandchildren, women with children, but no men. And we saw a subdued city. Everyone needed to put one foot in front of the other everyday, but there was a cloud everywhere.

We volunteered most days we were in Israel at the Chabad of Katamon near our apartment. When the war started Chabad of Katamon provided over 30,000 sandwiches each day to army bases for the 300,000 reservists. Today, they prepare and distribute 2500 to 3000 sandwiches daily to school children in Jerusalem. They are given to children from financially strained households, those displaced from the north and south, and the children of enlisted IDF reservists. There we met Esti, an 80-something woman who began helping on October 8 and is the volunteer head of the effort. She took to Hayim immediately and they became fast friends. We met Hayim and Sandy, who made Aliyah two years ago, who live in the neighborhood and come everyday to make sandwiches, and help with their grandchildren every afternoon. We met Miriam, a therapist who volunteers once a week as a break to the therapy she does with families who have been traumatized by the war. Miriam drove us home one day without even asking first where we lived. We also went to Kehillat Eretz Hemdah in the afternoon and helped to tie tzitzit onto IDF approved green T-shirts for soldiers. At each place, Hayim imagined the faces of children who would eat the sandwiches and the soldiers who would wear the tzitzit. Religious soldiers wear tzitzit as well as those who feel it brings them comfort and strength.

We visited the new national library at Givat Rom where there is an exhibit of chairs set with pictures of each of the hatufim and a book waiting on each chair for the hostage to return.

We visited family and friends to support them during this challenging time. Each one had different stories to tell about their experiences. “Where were you on October 7” is a common question. Many had children who were soldiers in Gaza or up north, many of whom had enlisted in the reserves when the war broke out. Some are confident that Israel will survive. And some not so confident and afraid this is the end. 

I reconnected with two women who had been in my aidah at Ramah Wisconsin and made Aliyah years ago. Before the war they started a zoom group for our aidah, those in America and those in Israel. I had been corresponding with these two, one from Des Moines and one from Houston, and they asked if I would visit in them Herzeliya. I took the train to Herzeliya to see them. The three of us hadn’t really been friends when we were campers or since, yet we had an inextricable bond made stronger by the situation in Israel. During our lunch, one asked me why I agreed to come and see them. I answered, “Because you asked me.” Hayim and I felt it was our duty to listen. 

We met a couple who had been evacuated from Kiryat Shimona, who were renting an apartment in our neighborhood. We invited them to stay in our place until we returned to Israel. They gladly accepted. Previously a mom and her two small children stayed at our apartment and before that a rabbi and his wife and children. This gave us a way to feel that though we were absent from Israel, we were still able to help others. 

We saw David Glotter who came to pick up a duffel bag of supplies we brought from his parents. We spent half an hour talking about his experiences up north, his concerns about Israel, and what it will be like after weeks and weeks at the northern front to be home again with his family.

We saw the warning from the dangerous oxen and we tried to mitigate their damage and look forward to returning to Israel for Pesach to pick up where we left off.

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