From: Netvort@aol.com
Sent: Friday, February 04, 2005
2:54 AM
To: JoshHoff@aol.com
Subject: Netvort : parshas
Mishpotim, 5765
Grab
Him !!
By
Rabbi Joshua (considerately known as The Hoffer) Hoffman
Among
the many interesting laws in this week's parsha is that of the 'ba bemachteres,'
or the thief who digs his way into someone else's house in order to rob him. The
Torah tells us, "If the thief will be found in an underground passage, and he is
struck and dies, there is no blood for him. If the sun shone upon him, he has
blood : he shall surely pay ; if he has nothing, he shall be sold for his theft"
(Shemos 22:2-3). As Rashi explains these passages, based on the Talmud, the
thief who breaks in knows that the owner of the house will not stand idly by
while he tries to take his possessions, but will try to stop him. In response,
the thief will try to kill him. Therefore the Torah says that the owner can kill
the thief, the rule being that if someone comes to kill you, you can get up
earlier and kill him first. However, if the sun shines on him, meaning, if it is
clear as day that the thief would not kill the owner even if he stood up against
him, then the owner is not permitted to kill him. The rabbis say that this
refers to a case of a father robbing his son. The end of verse 3 - "if he has
nothing, he shall be sold for his theft," is understood by Ramban as referring
back to chapter 21, verse 37, which immediately precedes the verses concerning
the 'burrowing thief'. We are told there, "When a man will steal an ox, or a
sheep or goat, and slaughter it and sell it, he shall pay five cattle in place
of the ox, and four sheep in place of the sheep.' If this burrowing thief who
does not intend to kill is caught and does not have the money to pay for his
theft, the Torah is telling us, he is sold as a slave in order to pay back his
debt.
Rabbi Yosef Salant, in his commentary Be'er Yosef to parshas
Mishpotim asks why the Torah mentions the requirement of paying for one's theft
to the extent of being sold into slavery if he lacks the requisite funds, in the
context of the burrowing thief. He answers that since, as Rashi explains, this
part of the passage deals with a father robbing his son, one might think that we
would not make him pay for the theft, especially if doing so would mean selling
him as a slave. After all, there is one opinion in the Talmud that the cost
involved in honoring one's parents must be provided by the child, and even
according to the opinion that the father must pay the expense, when the father
cannot afford it, the son must pay. We may, then, have thought that the father
has some kind of proprietary right over this child's possessions, and can take
them whenever he wants. Therefore, the Torah tells us that this is not so, and
the father does have to pay for his crime. I would like to offer a different
explanation for the appearance of this law within the context of the law of the
burrowing thief, and demonstrate that all of these laws have an intrinsic
connection to each other.
My teacher, Rav Aharon Soloveichik, of
blessed memory, was fond of telling over a certain story he heard from his
father, Rav Moshe, and said that he considered it to be one of the most
important stories he ever heard from him. Late one night, when Rav Moshe was a
young boy, living in the house of his father, Rav Chaim, the famed Brisker Rov,
some thieves broke into the house, and Rav Chaim woke his sons to see what was
happening. Rav Chaim calmly watched as the thieves took all of the valuables in
the house, His son Moshe, however, knowing the halacha of the burrowing thief,
wanted to stop them (the first time I heard this story from R. Aharon, as I
recall, he said that the young Moshe wanted to kill them, although in later
versions he only wanted to stop them). Rav Chaim, who actually knew the people
who were robbing him, told his son to let them take what ever they wanted.
Later, when Moshe asked his father why he didn't act according to the law of the
burrowing thief, he replied that, although the Torah does give the homeowner the
right to kill the intruder, it is still not the ideal thing to do, and it is, in
fact, an act of cruelty to do so. He said that this is why there is a separate
section of the Torah devoted to this law, and it is not included in the law of
the pursuer, found in parshas Ki Seitzei, in which we learn that if someone is
pursuing a woman and trying to rape her, or is pursuing someone and trying to
kill him, one can stop the pursuer by killing him. In the case of the pursuer,
said Rav Chaim, it is a mitzvoh to stop him, as the Rambam formulates this law
in his Laws of Murder and Preservation of Life (1:13). However, in the case of
the burrowing thief, it is only permissible to stop him, as the Rambam
formulates it in the Laws of Theft (9:7). According to Rav Chaim's reading of
the Rambam, then, it is preferable for the homeowner to allow the thief to take
what he wants, as Rav Chaim allowed the thieves in his house to do, rather than
utilize the Torah's allowance to kill him. Based on this explanation of the
Rambam, I believe that we can see a continuity in the three verses we have seen,
from chapter 21:37, to chapter 22:3.
In the first verse we are
examining, the Torah tells us that if someone steals a sheep, and slaughters it
or sells it, he must pay back four sheep in place of that one sheep, and if he
steals an ox and slaughters it and sells it, he must pay back five oxen in place
of that one ox. Why is there a difference between a sheep and an ox? Rashi cites
an opinion in the Talmud that it is because God takes pity on people's dignity.
While the thief leads the ox out of its owner's property walking on its
own feet, he most likely carries the sheep on his shoulder, perhaps to expedite
the process. The thief, therefore, suffered disgrace during his prohibited
operation, and the Torah, in recognition of that disgrace, reduced his
obligation. What is amazing here is that the Torah has consideration for the
thief due to the disgrace he suffered during the actual act of theft, and
considers the disgrace that he went through at that time as a partial payment !
In a similar way, following Rav Chaim's explanation of the law of the burrowing
thief, it is preferable to let the thief carry through his unlawful act rather
than take advantage of its grant to stop him by killing him. Here, too, the
Torah has consideration for the thief to the extent that even during the act of
theft, one is advised to let him continue, rather than kill him.
Parenthetically, it should be pointed out that the thieves who robbed Rav Chaim,
possibly out of gratitude for his restraint during their commission of the
crime, eventually returned the stolen property and asked him for his
forgiveness.
Seen within the context of the Torah's consideration
for the dignity of all segments of society, even the criminal in the midst of
his unlawful act, we can better appreciate the final law presented in this
sequence, that of the thief who is unable to pay up his debt. Today, we look at
the institution of slavery as one which completely ignores the dignity of man,
because, in fact, that is the way slaves were usually treated in most societies.
However, the institution of the Hebrew slave was totally different. The master
had to show consideration for the slave to the extent that if he had only one
pillow, he had to give it to his slave to sleep on, rather than use it himself.
The Talmud therefore says that anyone who purchases a Hebrew slave is really
purchasing a master over himself. Many years ago I heard Rabbi Chaim Dovid
HaLevy, the late Sephardic Chief Rabbi of Tel Aviv, deliver a lecture in which
he argued that the institution of the Hebrew slave is the Torah's vision of a
penal system, and is designed to restore the dignity and self-esteem of this
person who was formerly a thief, and eventually rehabilitate him so that he can
function as a valuable member of Jewish society. Perhaps it was for this reason,
then, that the law of selling into slavery the thief who cannot pay his debt was
placed in the context of the law of the burrowing thief, to show that the Torah,
by mandating that he be sold into slavery, was, far from ignoring the human
dignity of that thief, actually trying to restore it.
Please
address all correspondence to the author (Rabbi Hoffman) with the following
address - JoshHoff @ AOL.com.
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