ואל ה המשפטים אשר תשים לפניהם
“And these are the statutes (mishpatim) that you shall place before them.” (Shemos 21:1)
The bulk of this week’s parsha deals with the many laws that are categorized as mishpatim. These are the laws of interpersonal relationships and monetary dealing, issues that most lawyers and courts of justice deal with, Jew and Gentile alike. We know that in the Torah there are chukim – set statutes that have no apparent reason – and mishpatim – laws of common-sense and rational jurisprudence. This implies that mishpatim are logical and understandable. However, a closer examination of the parsha shows otherwise.
Rashi at the outset of our parsha focuses on the opening word “v'ayleh” [and these]. He explains that wherever the Torah uses the word “ayleh” [these], the Torah is invalidating or excluding something previously mentioned. However, where the Torah adds the prefix of a conjunctive “vov” (and) as in “V'ayleh” then we are supplementing that which came earlier. “And these” has the connotation “not only those, but these as well.”
The implication here, Rashi explains, is that just as those laws mentioned in Parshas Yisro, i.e. – the Aseres HaDibros [Ten Commandments] were given at Sinai, so too, the laws mentioned in Mishpatim were also given at Sinai. Why did the mishpatim have to be given at Har Sinai? If they are merely common-sense legal laws, jurisprudence, they emanate from the human intellect, not from Har Sinai.
Rav Zeidel Epstein zt”l would say that this teaches us a very important difference between civil jurisprudence and mishpatim in the Torah. The pasuk tells us (Tehillim 147:19-20): מגיד דבריו ליעקב חקיו ומשפטיו לישראל. לא עשה כן לכל גוי ומשפטים בל ידעום - “He tells His words to Yaakov, His statutes (chukim) and His judgments (mishpatim) to Yisroel. He did not do so to any nation, and they do not know the mishpatim.”
The pasuk compares mishpatim to chukim. First of all, we were always under the impression that chukim and mishpatim are in essence totally different. Moreover, why can’t the goyim understand mishpatim. Don’t they also have logical legal systems?
We see that the concept of civil law among the nations is different than the mishpatim given by the Torah. The purpose of civil law is to keep social order. It is based upon common sense and contains no absolutes. Its goal is to maintain law and order. As the Tanna in Avos (3:2) tells us, “Pray for the success of the government. For without it, everyone would eat each other alive.” Laws are necessary in order to prevent rampant crime, corruption and anarchy. It has no other intrinsic value in and of itself.
Jewish law, on the other hand has a totally different objective. Its underlying goal is to perfect the individual. Let us take as an example the laws pertaining to murder. In order to convict someone of manslaughter there must be two witnesses. And there are very parameters: they have to witness the incident in totality, be aware of each other, and make themselves known to the accused. They must clearly warn him of the consequences of his crime. They are interrogated and cross examined from all angles. If there is any fault or discrepancy in their testimonies, they are dismissed. The Gemara remarks that it is so difficult to convict a murderer that any Beis Din which executes a criminal more than once in 7 years is a considered bloody Beis Din. A second opinion is once in 70 years. A third opinion opines that if he would have been present at the time of the Sanhedrin, he would have been so stringent and thorough in his interrogation, no one would have ever been convicted!
Now our experience in modern society demonstrates that when criminals know that it is next to impossible to convict them there is no reason for them to be afraid. Society goes wild in such circumstances. So how could the Torah, given by Hashem the Almighty create such a legal system that prevents a substantial hindrance to crime? The answer is that the purpose of the Torah is a higher purpose than mere social order. The Torah is teaching us the highest ethics. Look at the lengths and contortions the halachah goes through in order to protect someone’s life (a criminal of all people!). The purpose of mishpatim is to teach us the value of human life and encourage the populace to maintain a higher standard and never sink to the level of crime. (In case of an exigency where the social order demands it, the king or the Sanhedrin had the power to temporarily act outside of Torah law and talk the law into their own hands.)
This is the impact of this first Rashi. The parsha of Mishpatim details the laws of how one should treat his fellow man. The Torah needed to emphasize that just like the Aseres HaDibros were commanded by G-d at Sinai, so too the laws of lending, damages, and watching someone's property are all from Sinai as well. The purpose of the Torah is to purify and sanctify us to make us into a holy nation. We all have a higher calling than merely being human. That is the purpose of the parsha of Mishpatim.
Rav Ezriel Tauber zt”l related the following incident in which he personally was involved: In Monsey we have a Choshen Mishpat Kollel. At one time they gave a series of classes to businessmen on the laws of Choshen Mishpat relating to business. One of the shiurim was on the laws of Geneivas Da’as [deception]. You are not allowed to mislead the purchaser of any item regarding its quality. You can’t cover up and beautify any merchandise if you know that it is blemished or damaged. This applies to all customers, both Jew and Gentile. You can’t deceive the purchaser. If there is any defect in the merchandise, you are supposed to make your buyer aware of it and not to cover it up. This is Geneivas Da’as – misleading and cheating him – and is an issur de’O’raisa [a prohibition from the Torah].
One of the businessmen attending the shiur was a very big real estate investor. After the shiur he went over to the Rav and said, “I think I’m in trouble now. I recently purchased a large office building. Prior to the acquisition I made a thorough engineering assessment. However, the engineer missed something which is very rare; there is a very deep crack in one of the sub foundations. From time to time it’s acting up and it’s wiping out my entire cash flow. I fell in. There is nothing I can do about it. The seller sold it ‘as is’. I made my normal investigation but this problem eluded us. I decided, well, if I fell in, let me get rid of it and someone else will also fall in. So, I put it on the market and found a buyer for a million-dollar profit. It’s all in the contract. Thank G-d I got rid of it. But from what I learned now, I must reveal to my buyer any hidden damage, and if I don’t, I’m violating Torah Law! But I can’t do that! If I tell him about it, he’ll never go through with the deal and I’ll be stuck with it forever! I can’t tell him! What should I do!?!”
The Rav answered him, “There’s nothing you can do. According to the Torah, you must tell him.”
“But he’s never going to buy it!”
“Well, then that’s what Hashem wants.”
So, he started sweating. On the one hand he was a yorei Shomayim – a G-d fearing Jew. But he didn’t want to lose a million dollars.
“Listen. If I give the Kollel $100,000, could I get off?”
“Sorry, it doesn’t work like that.”
“What if I give $500,000? I’ll make Hashem my partner and split the profits.”
“Sorry, it doesn’t work like that. It’s a Torah violation.”
“What if I just try to get back my original investment? I’ll give the Kollel a million dollars! I’ll just cut my loss. Just let me out!”
“You don’t seem to understand. It’s geneiva. You can’t steal. There’s no way around it.”
Then Rav Tauber stepped in. “I don’t understand. Either you believe what Chazal tell us or not. The Gemara tells us that everyone’s parnossa is determined on Rosh Hashanah. You can’t make more than was decreed for you. But you also can’t make less. Either you believe it or not. But if you don’t believe Chazal, I advise you that next Succos you come to shul with a lulav and a banana. All it says in the Torah is pri eitz hadar, a beautiful fruit. How do you know it’s an esrog and not a banana? If it’s up to you, then maybe a banana is beautiful in your eyes. The Torah doesn’t say esrog. But Chazal said to take an esrog. If you believe that, so believe this also. The same Chazal that say it’s an esrog, and you spend hundreds of dollars for an esrog. The same Chazal say that everything is decreed on Rosh Hashanah. Nobody can take away a penny from you. So be honest and come forward and tell the buyer the whole story. Whatever is going to be is going to be. But if not, if you think you’re going to make a million-dollar profit, maybe Hashem has decided differently. Then he will arrange that you’ll lose a million dollars a different way. You’re going to put a million dollars in the stock market and lose it all, and you’ll get a heart attack to boot. So, believe Chazal and be honest. Whatever is supposed to be will be.”
He answered, “OK. You’re right. I’m willing to go according to the Torah law. I’m going to tell the buyer the whole story and he can leave the deal if he wants to.”
Then Rav Tauber interjected, “Listen. Don’t tell him now. He signed a contract and tied up your property. He put down a quarter of a million-dollar deposit. He’s probably trying to flip the deal in his favor. Wait for the closing. He may not show up. Then he blew the whole deal and the quarter of a million dollars legally belongs to you. Wait for the closing. Then you tell him and if he wants out he can leave.”
He agreed.
The closing date arrived and the buyer came with all the money. He was willing to take the property. The room was filled with big shot lawyers, insurance agents, and real estate experts. Then the seller gave the purchaser a memorandum that the buyer should be aware that there is a crack in the sub foundation and it acts up from time to time.
“What’s this?”
“Can’t you read English? That’s exactly what it is.”
So, he gave it over to his lawyer. He was a Gentile. The lawyer turned to the seller and asked, “What is this?”
The seller said, “We are Jewish and do business according to the ethics of Sinai. According to Jewish law we can’t sell anything and cover up any blemishes. So, I’m letting you know about the fault in the foundation. And if he wants to back out, I let him out.”
The lawyer was smart. So, he asked, “Sure. If you’re such a religious guy, why didn’t you say something at the signing of the contract?”
“To tell you the truth at the signing I was not aware of my obligation. I only found out about it later. So, I’m telling you now. If he wants out, he can get out.”
The lawyer looked at him and snickered, “Yeah, yeah, Jew.” He turned to his client and whispered in his ear, “Don’t listen to this Jew boy thief. He probably got a better offer. He’s looking for a way to get you to walk away. Don’t listen to him. Buy it.”
The buyer turned to the seller and said, “Know what? I buy it ‘as is’.”
“Mazal and berachah. It’s yours!” So, he sold it for a million-dollar profit.
Now everybody was sure that the Jew was a ganev. Who’s meshuga to do what he did and reveal a major defect in a multimillion-dollar deal. But a month went by and the crack really started acting up and wiped out the buyer’s whole cash flow. Then he came running. “You Jews are amazing. I can’t believe it. You were telling the truth!”
Who is like the Jewish people, a holy nation! (R’ Eliezer Parkoff)
Rav Chaim Soloveitchik Plays Role of Horse, But Not Role of Creditor
In this week’s parsha, The Torah teaches the great mitzvah of free loans: “When you will lend money to my people, to the poor person who is with you, do not act toward him as a creditor (lo tiheyeh lo k’noshe); do not place interest upon him.” (Shemos 22:24)
I once read the following incident involving Rav Chaim Soloveitchik: Rav Chaim lent money to a Jew. It was a loan for a certain period of time. The time came and the borrower did not repay Rav Chaim. Rav Chaim did not say anything. A week passed, two weeks passed, a month passed. Rav Chaim still did not say anything. Finally, the borrower met Rav Chaim Soloveitchik and said: “You are a batlan [careless person]. You lent me the money and you forgot all about it and that’s why you haven’t asked me for it. You don’t have your act together.”
Rav Chaim explained to the borrower that he most definitely did have his act together. The Rav of Brisk told him that he always used to take the shortcut between his own home and the shul that passed right in front of the borrower’s house. Ever since he lent the money to the fellow, he did not take this shortcut. He did not want to perhaps transgress the prohibition of “becoming like a creditor” (lo tiheyeh lo k’noshe). “Not only did I not walk by your house before the loan was due, even now, after the loan is due why do you think I still go out of my way to avoid your house? It is for the same reason. So, please don’t tell me that I am a batlan and I forgot about the loan!”
When reading the story, I had to ask myself, “What kind of fellow goes to Rav Chaim Soloveitchik and tells him he is a batlan?” It is reminiscent of the definition of chutzpah being someone who kills his parents and then claims mercy from the court because he is an orphan. Here is a fellow who has the nerve to ask the Rav of Brisk for a personal loan; does not promptly repay the loan, and then insults the Rav for not having demanded prompt payment!”
I believe we can infer from this story the reason why this fellow had to borrow money from Rav Chaim Soloveitchik. There was no one else in town willing to lend money to such a person! Rav Chaim was such a kind person that he would even lend money to such a person.
Rabbi Aaron Rakeffet-Rothkoff in his work “The Rav: The World of Rabbi Joseph B. Soloveitchik” records many stories Rabbi Soloveitchik used to tell about Brisk and about
