שביבי אש
לסדר משפטים

כִּי תִקְנֶה עֶבֶד עִבְרִי

When you buy a Hebrew slave (Exodus 21:2)

Rashi comments: [This means] a slave who is a Hebrew. Or [perhaps] not, but the slave of a Hebrew, i.e., a Canaanite servant whom you have bought from an Israelite? And it is concerning him that the Scripture states "he shall serve six years." And [should you ask], how do I explain [the commandment] (Leviticus 25:46): "And you shall take them as an inheritance for your children after you, to inherit them for a possession; they shall be your slaves forever"? (וְהִתְנַחַלְתֶּם אֹתָם לִבְנֵיכֶם אַחֲרֵיכֶם לָרֶשֶׁת אֲחֻזָּה לְעֹלָם בָּהֶם תַּעֲבֹדוּ). [Then I reply, this refers to] one who was purchased from a Gentile. But if such a slave had been bought from an Israelite he shall go free [after] six years. [To preclude such an interpretation] the Scripture states (Deuteronomy 15:12) "and if your brother, a Hebrew man, . . . is sold to you, he shall serve you six years, and in the seventh year you shall let him go free from you" (כִּי יִמָּכֵר לְךָ אָחִיךָ הָעִבְרִי אוֹ הָעִבְרִיָּה וַעֲבָדְךָ שֵׁשׁ שָׁנִים וּבַשָּׁנָה הַשְּׁבִיעִת תְּשַׁלְּחֶנּוּ חָפְשִׁי מֵעִמָּךְ). I do not say [this, i.e., that a slave goes free after six years] except concerning your brother [an Israelite].

But it may be questioned why in Exodus the Hebrew slave is called a "slave" (עֶבֶד) but in Deuteronomy is called "your brother" (אָחִיךָ). And it appears to our master to explain this by way of a further question, which is why in Exodus does the Scripture write "when you buy" (כִּי תִקְנֶה), implying that the transaction is contingent on the decision of the buyer, while in Deuteronomy the Scripture writes "if [he] is sold to you" (כִּי יִמָּכֵר לְךָ), implying that the transaction is contingent on the decision of the seller. However, it may be answered that in Exodus the Scripture is speaking about one who cannot provide restitution for a theft and therefore is sold into servitude by the court. Thus, once the judgment that he is to be sold into servitude is rendered by the court, the thief is at once considered a slave as if he had already been sold. Since it is then necessary only to wait for someone to buy him from the court, the transaction at that point is contingent on the decision of the buyer alone. The Scripture therefore says "if you buy" (כִּי תִקְנֶה). But in Deuteronomy, the Scripture is referring to one who must, owing to his own indebtedness, sell himself into servitude. Thus, until he is actually sold, he remains free and must still be called your brother. The Scripture therefore describes the transaction as contingent upon his decision and writes "if he is sold" (כִּי יִמָּכֵר) to underscore that the sale depends on his volition.

וְכִי יִפְתַּח אִישׁ בּוֹר אוֹ כִּי יִכְרֶה אִישׁ בֹּר

If a man shall open a pit, or if a man shall dig a pit (Exodus 21:33)

Rashi comments: Why is this stated? If one becomes liable for opening [a pit that already exists] how much the more is one liable for digging [a new one]. However [the words כִּי יִכְרֶה are intended] to include one who digs [i.e. deepens] a pit that another has already dug.

The G'RA explains that the word "בּוֹר" (pit) is written without the letter "וֹ" to show that the pit was at first not fully dug, and then the second person came and finished digging it. And our master added to these holy words by saying that it would have been more appropriate for the Scripture to have written "if a man shall dig in the earth" (כִּי יִכְרֶה אִישׁ קרקע) instead of writing "if a man shall dig a pit" (כִּי יִכְרֶה אִישׁ בֹּר), because there is no pit until after one has dug into the earth. However, it must be that the Scripture was indeed referring to a situation in which one person dug deeper into a pit that another person had already dug and by so doing completed digging the pit. Thus, if the word "בּוֹר" had been written with a "וֹ", one might have said that even if the pit had been completely dug by the first person [i.e., the pit had been dug to a depth of ten handbreadths, the minimum depth of a pit for which one would be liable to pay for damages] and the second person dug it even deeper, the second person would be the one liable for digging the pit, because his action would have superseded the action of the first person. But this is not the halakhah as the Talmud explains. Thus, the Scripture wrote the word "בּוֹר" without a "וֹ" to show that only if the pit was initially less than ten handbreadths deep and the second person completed it by digging to a depth of ten handbreadths is the second person liable for any damage caused by the pit.

מִדְּבַר שֶׁקֶר תִּרְחָק וְנָקִי וְצַדִּיק אַל תַּהֲרֹג

Keep far from a false matter; and do not slay the innocent and righteous (Exodus 23:7)

In the Mekhilta this is understood to be a prohibition against speaking gossip (l'shon ha-ra). And it appears that the Mekhilta did not want to interpret "sheqer" (false) literally, so that the verse would be a prohibition against rendering a false judgment because the previous verse "you shall not pervert the judgment rendered to your poor in his cause" (lo tateh mishpat evyonkha b'rivo). However, it is still difficult to understand how the words "d'var sheqer" (a false matter) can refer to l'shon ha-ra, inasmuch as l'shon ha-ra refers to the spreading information that is true.

And the answer appears to our master to be based on what our Sages say in the Talmud (Pesahim 113b) that the Holy One Blessed Be He hates three types of individuals, one of whom is a person who sees something indecent in his neighbor and who testifies against him alone, as in the case of Tobias who sinned and Zigud alone came to testify against him before Rav Papa, whereupon Rav Papa had Zigud punished. Rav Papa certainly acted properly in disregarding uncorroborated testimony, because if the uncorroborated testimony of a single witness in court were believed, the life of every person would be at risk. While it is certainly reasonable that the testimony of a single witness not be sufficient to inflict any punishment on another person, one may nevertheless ask why should the Eternal, who knows that the single witness did not testify falsely against his brother, hate him for testifying alone? It is possible to answer this question based on the remark of the Sages (Berakot 19a) that if a scholar committed a sin at night, do not question his virtue (al t'harheir aharav) the day after, for perhaps he repented. To which the Talmud asks "perhaps?" and concludes, "rather, he has surely repented." Now the reason that the Talmud asks "perhaps?" is that if it were doubtful whether he repented of his sin, then why should one not question his virtue? The question about his virtue would appropriately reflect the doubt concerning whether he had repented. That is why the Talmud answers, "he has surely repented." This suggests that there would indeed be a doubt whether a person who is not a scholar has repented of a sin that he has committed, so that it would be permissible for one to question in his own heart the virtue of such a person, though it would not be permissible to say anything about the transgression to others, for perhaps the person had indeed repented. Therefore, one who observes another committing any transgression over which a court of law has no jurisdiction, may not tell anyone else that he saw the person commit a transgression, even though the observer knows about the transgression with the certainty of a hundred witnesses. And the Holy One Blessed Be He would hate him for telling others about what he saw, because perhaps the one who committed the transgression has repented of it and atoned for it, in which case he has slandered his brother who is now a righteous person.

Rashi further explains that the second half of the verse, "and do not slay the innocent and the righteous" (וְנָקִי וְצַדִּיק אַל תַּהֲרֹג) refers to one who is innocent (נָקִי) even if he is not righteous (צַדִּיק) and to one who is righteous even if he is not innocent. According to this explanation, the second half of the verse can be understood as the reason for the first half. "Keep far from a false matter" (מִדְּבַר שֶׁקֶר תִּרְחָק), for if one has been found to be righteous by the court, do not, even if you know that he is not innocent, consider him to be wicked, for perhaps he has repented. [Moreover, one who is righteous, but has sinned, will certainly have repented. Tr.] And in that case, it would indeed be proper to refer to gossip (לשון הרע) as false, because, having repented, he is now righteous, not wicked.