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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