Liability in Parshat MIshpatim: A Review of Commentaries

The laws of liability in this week's portion have levels of meaning.

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Rabbanit Shira Smiles,

Young women study Torah
Young women study Torah
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Most of the content of Parshat Mishpatim deals with the laws of damages. After all, mishpatim by definition means judgments. However, if we study these laws either here or in the Gemarrah in the strict literal sense of the circumstances described, we will miss the greater significance these principles are meant to convey to us.

After all, the Gemarrah in Bava Kama tells us that he who would strive to be a pious person (chasid) should study the laws of nezikin, the laws of damages. In this context, the Netivot Shalom points out that the root of chasid is chessed, In other words, to be a pious person, one’s entire being must be involved in kindness.

The Netivot Shalom, the Slonimer Rebbe, cites the Maharal on Pirkei Avot who explains that a chasid is one who wants to make his very essence doing that which is right in the eyes of Hashem. This is the ultimate form of wholeness and harmony of human existence (shelaymut).

According to the Maharal, this wholeness has three components; he must achieve wholeness with his Creator, with his fellow man, and with himself. If we study the laws of damages carefully, we can find the pathways that will help us along the road to achieving wholeness in each of these components.

Let us begin our discussion by asking, as Rabbi Friefeld does in "In Search of Greatness", what is the purpose of existence. The Torah view, a view adopted by modern psychology as well, is that the purpose of existence is growth, to continually change and transform ourselves. Growth provides vibrancy and meaning to our lives.

Through the vehicle of free choice, we transform our mere being into becoming. Every time we do a mitzvah, we change and grow. The very blessing we say before performing a mitzvah bears witness to this transformation, “ For He has sanctified me with His mitzvoth,” through my doing mitzvoth I create change within myself, I become sanctified. Every choice I make has the ability to enlarge or, conversely, to diminish me.

If, through the mitzvoth I create and enlarge myself and ensure my very existence, what is the formula for the growth, security and well being of the world, asks Rabbi Friefeld. Tehillim gives us the answer: “Olam chessed yeboneh – the world is built by kindness.” The key to a well functioning world is kindness, moving away from egocentrism and reaching out to others. By bringing them into my line of vision and more importantly into my circle of action, I am enlarging myself. The more people I help overcome difficulties, I help grow, the more I expand my consciousness, the larger I become, and the more I create myself.

When we make ourselves aware of the needs of others, we are emulating the Almighty in the only way we can, with chessed, continues Rabbi Friefeld. Hashem not only created the world, but maintains the world by continually seeing what is lacking and filling that void. If Hashem did not constantly provide for our needs in this way, the world would cease to exist. Similarly, when we make ourselves aware of the needs of others, we are expanding ourselves, we are transformed and ourselves recreated.

So how is this concept connected to the laws of damages? Rav Yerucham Levovitz in "Daas Torah" explains that the laws of damages are not about a finite ox, or the damages caused by fire, or any other particular law of damages. The laws are a medium to know my friend, to understanding the idea of ownership, to feeling the pride of ownership and the pain of loss. When I sensitize myself to these elements of my friend’s psyche, I understand why he is entitled to damages for his loss.

More importantly, I take special care to prevent these losses to begin with. I become sensitive to my neighbors, to know who they are, what makes them tick, and what they may need. I can empathize with the beggar who comes to my door asking for tzedakah. In short, I become a vehicle of chessed.

It is within this context that the "Tiv Hatorah" makes us realize that damages can be inflicted spiritually as well as physically. Building on the laws of who is responsible for damages if one person dug a pit and the other expanded it, he cautions against making unthinking comments that may push someone already at risk over the edge.

Rabbi Gamliel Hacohen Rabinovitz in "Tiv Hatorah" appeals to us to act with care, for a thoughtless moment, such as talking during kedushah may be the trigger for our neighbor to feel this behavior is acceptable, and he may sin as a result. Our thoughtless action may damage our neighbor spiritually.

Rabbi Chayim Shaul Kaufman, the "Mishchat Shemen", based on the Bal Shem Tov, parallels the four different categories of causing damages with four ways one can damage one’s neshama, soul. The first is the ox, shor in Hebrew, which Rabbi Kaufman parallels to the eyes, basing his interpretation on a word in Bilaam’s prophecy, ashurenu, I will see. Therefore He exhorts us to be careful that our eyes see only “kosher” sights. Secondly, the pit implies emptiness. Let us not remain empty, but fill our minds with Torah knowledge. (It is interesting that the Hebrew word for pit is boor while a boor in English supports this interpretation.) The third set of damages is through teeth, reminding us that we must watch both what goes into our mouths and what comes out of our mouths. Finally, fire has the potential to cause devastating damages, so we must always be mindful to control the passions within ourselves, the fires of haughtiness, sexuality and anger. To achieve a life of wholeness, one must work on all these areas of oneself.

Rabbi Salomon in "With Hearts Full of Faith" cites the Gemarrah in referring to the person who damages another’s property as a mav’eh. He links this root to the root for prayer (tivayum b’ayu) as found in Isaiah. As such, a mav’eh is a person whose life is full of prayer for the redemption, a tzadik. However, if he is responsible for damages such as an unpaid loan, he is blocking his prayers from ascending to Heaven. In other words, if you owe money to a human being, you are damaging your relationship to Hakodosh Boruch Hu.

The next area of damages we will discuss in the context of becoming a whole person is the laws of the “watchman”. There are four different kinds of watchmen: the paid or hired watcher, the unpaid watcher, the borrower and the renter. While each should be careful with the other’s property, each has a different obligation when it comes to his responsibility to cover any damages that occurred while the property was in his possession.

Rabbi Pliskin points out that if we are to be sensitive to each other, both parties in any of these relationships should make every effort to minimize damages. For example, it is proper that we lend our possessions to our friends when they need it. However, we can minimize losses by properly labeling what we lend and keeping an updated list of where our possessions are. How often have we borrowed a book, for example, and cannot return it because we’ve forgotten whom we borrowed it from? Similarly, a borrower must be super careful with his friend’s property, not only not to damage it but also not to use it in a way not originally agreed upon, and not lend it to a third party without permission. When I’m careful with someone else’s property, I stretch myself and I grow.

The "Mishchat Shemen" translates the responsibilities into the language of spirituality. Rabbi Kaufman starts by reviewing the responsibility of the borrower. If the borrowed property was lost, the borrower must pay for it. However, if the owner was with him at the time of the loss, the borrower is not responsible. In the spiritual realm, the Ribbonoh shel Olam has entrusted each of us with a holy soul on loan from Him. Our responsibility is to guard it and return it to Him in the same condition that we received it. But we may sin and damage that pure soul. If we still consider ourselves to be in the presence of Hakodosh Boruch Hu, we are not liable. Perhaps the soul can be repaired. However, if we have distanced ourselves from the Owner of our soul, if we are habitual sinners, then we are truly liable for damages.

These laws are truly not only between man and his fellow man but also between man and himself and between man and God.

Along these lines, the "Tallilei Chayim" based on the Shelah Hakadosh interprets these four kinds of “watchers” as four levels in service to Hashem for, as he points out, we are all part of that first injunction to Adam who was told that he must both work (service) the land and guard it – le’ovdah uleshomrah. The one who freely guards his friend’s possession is likened to the one who serves Hashem without thought of any reward, whole the hired guard does the mitzvoth with the thought that his reward will be in the world to come. The renter, on the other hand, seeks some personal gain from doing the mitzvoth. This is similar to a man who borrows an ox to plow the field. He doesn’t need the ox per se; he needs it for a purpose. As an example from the Gemara, this would include someone who says, I am giving tzedakah so that my son will recover from this illness.

The final and lowest level is the borrower. He does mitzvoth only because he derives some pleasure from doing so. Should he find something more pleasurable, he would quickly stop observing these mitzvoth. Because he has no sense of responsibility toward the “Lender” at all, because he feels everything exists only for his personal pleasure, this is the only kind of “watcher” that is liable for damages even if they are beyond his control. It’s as if Hashem is telling him that he was never in control, that all that he has comes directly from Hashem.

The "Minchat Michoel" cites the Alshich in a similar homiletic interpretation. The man in these verses, the property Owner, says the Alshich, refers to G-d, Hakodosh Boruch Hu, while the “friend” refers to the Jews, Bnei Yisroel.

According to this interpretation, if Hashem has entrusted wealth to a person and that wealth disappears, the man must search for the thief, he must do introspection and find out how he has failed to be a good guardian of the money. If he finds the culprit and does proper teshuvah, Hashem will reimburse him and he will regain his wealth. If he does not do teshuvah, he will not regain his wealth.

So we can see that these laws of damages are meant to be internalized, to sensitize ourselves to others. By doing so, we expand our own consciousness, recreate ourselves in a greater form, and strengthen our bond not only to each other, but also to the Owner and Creator of all that exists on this earth. When we can integrate all these aspects that being a human implies, we ourselves achieve wholeness, completion, and a sense of harmony in our own lives.

Summary by Channie Koplowitz Stein