The posuk begins: "And these are the judgments." Rashi, quoting the Mechilta, writes "Wherever the Torah says: ‘And these’, it adds on to that which has been stated previously. Just as that which has been stated previously, the Ten Commandments are from Sinai, so too these commandments that the Torah is about to state are from Sinai."

 The obvious question is: What would make us think that the civil law that follows is not from Sinai? Why is the “And” necessary to make the connection clear and to remind us of the divine origin of what follows?

The Gemara in Baba Kama [30a] makes the following statement: “Rav Yehuda says ‘One who wishes to become a Chosid (translated as pious or devout) should fulfill the words of Tractate Nizikin (i.e.Tractates Bava Kama, Bava Metzia and Bava Basra, which contain everything pertaining to civil & tort laws).’ Rava says ‘He should fulfill the words of Tractate Avos’ and others say ‘He should fulfill the words of Tractate Brochos.’”

Since Avos teaches us how to be pious in our relationships with other people and Brochos teaches us to elevate the mundane by making Brachos which connect us with HaShem and bring true dveikus, we can see how they relate to being a Chosid. But what about Nizikin?
In chapter 24 verse 1, the posuk says: “To Moses He said ‘Go up to HaShem – you, Aaron, Nadav and Avihu, and seventy elders of Israel’" Rashi points out that this took place before Bnai Yisrael heard the Aseres Hadibros, despite the fact that it occurs in the Torah after them. While Rashi reminds us in his commentary that there is no chronological order to the Torah, there must be some message in the order being changed. Why are the laws of Mishpatim embedded inside the narrative of revelation?

Rav Yaakov Kamenetzky (Emes LeYaakov) quotes Pirkei Avos: "Beloved is Man for he is created in His image” and asks : Why weren't the non-Jews commanded to keep the Mishpatim as well? Rav Yaakov answers that while Mishpatim seem to be civil laws, which are developed and applied based on human understanding, they are in fact much more than that. An example, continues Rav Yaakov, is the law of freeing the Hebrew servant after six years. Why six years? This is to remind us of creation, the freedom from work at the 7th stage of a cycle.  In this example as one of many, what is apparently a Mishpat incorporates a lesson of emunah into the mitzvah.

We can expand this idea even further. In chapter 23 verse 5 we read “When you see the donkey of someone you hate lying under its burden will you refrain from helping him? You shall surely help him.” The Gemarah in Bava Metzia [32a] informs us that this includes the following scenario: If a friend requires unloading and an enemy requires loading, one’s first obligation is towards his enemy. Why? Continues the Talmud: “In order to subdue one’s evil inclination.”
Think about it. My friend’s donkey is withering in pain and needs my assistance to relieve the burden from this animal. And yet I am commanded to ignore this and assist my enemy to LOAD his donkey to force me to override my natural instinct. The lesson we learn from this is that perfecting one’s character is itself a mitzvah.

We can now understand Rav Yehuda’s statement that the study of Nezikin will lead to becoming a Chasid. Rashi’s comment emphasizing the Divine origin of these civil laws is hinting to us that these laws are not of the same kind that we are familiar with in secular society.  With regard to the question of why revelation is taken out of its chronological order, we see that in addition to providing us rulings for practical application, the Mishpatim carry fundamental lessons of the Aserres Hadibros, hence the placement of these laws within that context.

Rav Shimshon Rafael Hirsch, in a letter to his cousin Tzvi May before publishing Horeb, writes, "One could write a whole treatise on the damage which has been done and is still being done by the fact that the Shulchan Aruch did not appear in one volume. That is how it came about that many a person has thought and still thinks that he is a perfect Jew if he merely observes the laws of Orach Chaim. A good deal of Yoreh Deah and even more of Choshen Mishpat and Even Haezer was neglected."  Rav Moshe Feinstein zt”l has said that this is the reason why we introduce the study of Elu Metziot in grade 5/6 in the yeshiva ketanot.  With guidance from these two great luminaries & by becoming more familiar with the halochos of Seder Nezikin we will be able to incorporate them into our lives, and thereby strive to be true Chasidim. 

Good Shabbos

THE WEEKLY SIDRA- MISHPATIM Rabbi Moshe Greebel On occasion, this weekly mailing offers its subscribers a more ‘Lomdish’ (scholastic) perspective of the week’s Sidra. And, with a Sidra the likes of Mishpatim, which is very heavily inundated with a vast compendium of technical data, that Lomdish perspective is precisely the tool of which to make use. This week’s Sidra represents one sixth of the Shisha Sidrei Mishna (six orders of Mishna), bearing the title N’zikim (damages), which might translate today into the more legal form of torts. In the human experience, information may either attain the status of fact through observation or deduction. Of course, there are as well, those details which can neither be observed, nor deduced. Man therefore, straddles the chasm of that which is known, and that which is not. One may certainly ask, how is one expected to conduct himself in this labyrinth of fact and ignorance, according to the Torah HaK’dosha? In this week’s Sidra, among the many other Mishpatim (laws), the Torah writes of a Pikadon (deposit for safekeeping) case, in which the litigants debate in Bais Din: “For every kind of trespass, whether it be for ox, for ass, for sheep, for garment, or for any kind of lost thing, which another challenges to be his, the cause of both parties shall come before the judges…..” (Sh’mos 22:8) Now, the expression ‘to be his’ in LaShon HaKodesh is ‘Ki Hu Zeh,’ upon which the Gemarah in Bava Kama 106b instructs: “Rabbi Chiya Ben Abba further said that Rabbi Yonosan stated, ‘He who puts forward a defense of theft in the case of a deposit, could not be made liable (for a Sh’vua- an oath), unless he denies a part and admits a part (of the claim). The reason is that Scripture states, Ki Hu Zeh.’” Simply, in a Pikadon case, a Sh’vua can only result in the partial admittance of debt (and denial of the rest) by the one who was entrusted with the object. The Gemarah in Bava M’tziya 5a elaborates much more on this partial admittance in a case of Pikadon: “Come and hear what the father of Rabbi Apotoriki taught, as a refutation of the first (law of) Rabbi Chiya. (If one says to another), ‘You have a hundred (Zuz) in your possession belonging to me’, and the other says, ‘I have nothing belonging to you,’ and witnesses testify that the defendant owes the plaintiff fifty (Zuz). I might think that the defendant ought to take a Sh’vua regarding the rest. Therefore, the Scriptural text tells us, ‘For every kind of trespass, whether it be for ox, for ass…..which another challenges to be his.’ For, any manner of lost thing, of which he says Ki Hu Zeh (indicating thereby that) you impose (a Sh’vua) on him in consequence of his own admission. But, you do not impose (a Sh’vua) on him in consequence of the evidence of witnesses!” That is, even if witnesses testify that the defendant does owe the other fifty Zuz to which he did not admit, no Sh’vua can be put upon him. The partial admittance must come directly from the defendant to obligate him to take a Sh’vua. The Gemarah in Sh’vuos 39b puts it this way: “And Scripture says, ‘Ki Hu Zeh.’ And Rav? That we require for admission of a portion of the claim. And Sh’muel? It is written, ‘it’ (Zeh), and it is written, ‘this’ (Hu), (to teach us) that if he denied a portion, and admitted a portion, he is liable (to take a Sh’vua).” Again, from the words Hu (this) and Zeh (it), our Rabbanim of blessed memory, deduced that in a Pikadon case, a Sh’vua can only be administered as a result of the defendant’s partial admittance of debt. But in reality, the above Passuk (verse) from this week’s Sidra does not openly mention anything about partial admittance at all. How then, could our Rabbanim of blessed memory have attributed this concept of partial admittance to the Passuk, in the three different M’sechtos (Talmud volumes) we have seen? To resolve this query, the text K’hilas Yitzchak (page 119) cites one Rav Shaul, the Av Bais Din (head of Bais Din) of Kobrin (formerly of Poland), who quoted his father Rav Meir of Schnipeshak (in the vicinity of Vilna), in the following manner. The way in which to understand partial admittance in a Pikadon case, is that when one completely denies any debt, this is to be considered Nistar (a concealed fact). For, in such circumstances, the Emes (truth) remains unknown to Bais Din, in that they do not know if the Emes is with the plaintiff or with the defendant. Now, the defendant in this Pikadon case, partially admits to some obligation of debt, while denying the rest. The part on which he admits is the Barur (clear aspect), which Bais Din accepts as truth. Yet, the part on which he denies is again the Nistar, where once more, Bais Din does not know if the Emes is with the plaintiff or with the defendant. Now, in the grammar of LaShon HaKodesh, the word Hu (this) denotes the Nistar, while the word Zeh (it) denotes the Barur. Therefore, instructed Rav Meir, since the Passuk has the plaintiff utilize both words of Hu and Zeh in the same clause, the Passuk must be speaking of partial admittance- Zeh representing the Barur of partial admittance, while Hu represents the Nistar of not admitting to the remainder. Hence, we have a situation in the Torah, where knowledge and ignorance are intertwined in the same circumstances, and, where the Torah instructs Bais Din to approach the defendant, who uttered the words Hu and Zeh. There are other cases in Tanach, where the consolidation in a phrase of Hu and Zeh, denotes the Nistar and the Barur, taught Rav Meir. An example would be the time in which Sh’muel HaNavi (prophet) came to anoint Dovid as king, the latter being described as: “…..And he was red haired, with beautiful eyes, and good looking; And HaShem said, ‘Arise, anoint him; for this is he (Ki Zeh Hu).’” (Sh’muel I 16:12) Now why, posed Rav Meir, does the Passuk not simply end with ‘Arise, anoint him.’? Why must it superfluously state ‘Ki Zeh Hu’ (inverted in this Passuk)? The answer to this question can be found in the Midrash B’raishis Rabbah 63-8: “And when Sh’muel saw that David was red haired (like Aisav)…..he was smitten with fear, thinking he too might be a murderer. But HaKadosh Baruch Hu, reassured him that he was of beautiful eyes, (which meant), Aisav slew by his own impulse, whereas he (Dovid) would slay only on the sentence of the court.” That is, the Zeh (it), the fact that Dovid was red haired, was the Barur of a murderer to everyone, while the Hu (this) was the Nistar of someone who would only kill by law- both terms existing simultaneously. Yet another example of this dual state of Nistar and Barur, taught Rav Meir, can be seen in reference to Yishmael, whose life (and that of his mother) was saved in the wilderness. The Malach (celestial emissary) addressed the mother: “…..What ails you, Hagar? Fear not; for G-d has heard the voice of the lad where he is there.” (B’raishis 21:17) The expression ‘where he is there’ in LaShon HaKodesh, is Ba’asher Hu Sham- the Sham (there) taking the place of the Zeh (it). Again, why did the Passuk not simply end with ‘for G-d has heard the voice of the lad’? What need is there for ‘Ba’asher Hu Sham’? The answer is found in the Midrash B’raishis Rabbah 53-14: “…..The ministering Malachim (celestial emissaries) hastened to indict him (Yishmael), exclaiming, ‘Sovereign of the Universe! Will You bring up a well for one who will one day slay Your children with thirst?’ ‘What is he now?’ He demanded. ‘Righteous,’ was the answer. 'I judge man only as he is at the moment,’ said He.” Again explained Rav Meir, the Sham- the Barur- was that the children of Yishmael would one day slay B’nai Yisroel with thirst, while the Hu- the Nistar- was that Yishmael had repented at this time. And so, we live in a world, where at least to man, certain things remain unknown. It is only through the Torah HaK’dosha that we are able to find our way in this darkness of doubt and uncertainty- the Hu and the Zeh of life. May we soon see the G’ulah Sh’laimah in its complete resplendency- and in our times. Good Shabbos.