This Week's Torah Portion: Property and Tort Law

Dëvar Torah – Parashath Mishpatim (Exodus XXI, 1-XXIV, 18)

This week, our parasha begins with the enumeration of many of the Torah’s laws concerning property and torts.

Mishpatim (“judgments”), as the root meaning implies, are so-called “rational” laws such as any society must enact to safeguard property rights, deal with claims against damages, etc. For this reason, and because such laws are by necessity interpreted and administered by the courts, it might be possible to conclude that the mishpatim of Jewish jurisprudence are on the same footing as Roman law or English common law.

G-d forbid! Rashi, citing the nidrash, notes that this is why our parasha’s first verse begins vë’élle hamishpatim (“and these are the judgments”), even though at first glance it has nothing in common with the end of last week’s parasha. The “and,” he writes, “adds to the first laws; just as the first ones are from Sinai, so are these from Sinai.”

This week also marks the first of four special readings that bracket the holiday of Purim, each of which necessitates the use of a second séfer Torah (if one is available) in the synagogue. This reading, parashath Shëqalim (Exodus XXX, 1-16), deals with the donation of nchatzith hasheqel (“half a sheqel”), which originally took place in connection with a census of Israel Moshe was commanded to take after the episode of the Golden Calf. When there is a Temple, this annual donation, known as the Tërumath haLishka (“Donation of the Office,” after the room in the Temple where the funds were stored) is used for the purchase of public sacrifices (Mishna Shëqalim IV, 1). Its connection to Purim lies in that today the collection is made on the night of Purim, before the first reading of the scroll of Esther.

In the parasha, we are told that every man of Israel aged twenty years and older is to donate the half-sheqel as kofer nafsho la-Shem (“the ransom of his life to Ha-Shem”). The Sforno offers a cogent explanation of this “ransom”: he noted that when a group of people are counted, Divine attention is called to them and they are scrutinized. Such a counting is thus mazkir ‘avon, remindful of any sins committed by members of the group. The Talmud (Shabbath 55a) tells us that generally éyn mitha bëlo’ ‘avon (“there is no death without sin”). Therefore, says the Sforno, it is fitting that every man pay kofer nafsho (the word kofer which is here translated “ransom” is derived from the same root as kippur, “atonement”) when being counted.

This is the reason that he‘ashir lo’ yarbe vëhadal lo’ yam‘it, “the rich man will not increase (his donation) and the poor man will not decrease it.” In this respect, all men are equal.

The concept of a “ransom” or “atonement” also underlies the Talmudic explanation of the amount of the donation, half a sheqel or ten géra (cf. XXX, 13), which Rabban Yochanan ben Zakkai relates to potential violations of the ‘Asereth haDibbëroth (“Ten Pronouncements,” usually mistranslated “Ten Commandments” in English), one géra for each dibbëra (Shëqalim II, 3).

The notion of a danger inherent in censuses motivates the comment of Rashi and other commentators that the collection of the half-sheqel was a sort of stratagem to obviate the potential consequences of a direct census. By counting the money instead of the people, one may still automatically know the population of the group.

The Ha‘améq Davar find this interpretation difficult to reconcile with the idea of a kofer nefesh: if substituting a minyan of coins for a minyan of people obviates the danger, then the danger no longer exists. So in what way is the money a kofer? Then, too, if the donation was made to fend off the consequences of this particular census, what is the source of the commandment for the generations, such that Israel continues to make the payment down to our own day?

The Ha‘améq Davar notes in answer the Yërushalmi’s concluion (Shëqalim VI, 3) that the parasha actually deals with two donations: verse 13 refers to the Tërumath haLishka, while verse 14 refers to a different, one-time donation for the construction of the Mishkan, the Tërumath ha’Adanim (“Donation of the Pedestals,” which were made of silver; cf. Exodus XXV, 19). The fact that two donations are involved leads to the question: if the juxtaposition of the donations to the census was to prevent disaster, why were two donations necessary? Surely giving the Tërumath ha’Adanim alone would have enabled the result claimed by Rashi (since it was also half a sheqel per man).

The Ha‘améq Davar therefore concludes that verse 13 describe a separate mitzva of the Torah which would have been in effect even if the census had never taken place. It was only ordered that the first performance of this annual duty coincide with the census to provide a lofer neffesh that one time.

Since Parashath Shëqalim often coincides with Mishpatim (as it does this year) it seems reasonable to seek a relationship between the two parashoth.

In Mishpatim (XXI, 29-30) we read of the case of a dangerous animal, a bull whose aggressive propensities have been demonstrated and are well known to the owner, who nonetheless fails to exercise proper caution with the animal. As a result of his negligence, a man or woman is gored and killed, G-d forbid. In such a case, Scripture informs us, not only is the bull put to death, but vëgam bë‘alav yumath (“also his owner shall be killed”).

As Rashi notes based on Sanhedrin 15b, this is mitha bidei shamayim (“death at the hands of Heaven”); a human court can only kill one who murders with his own hands. But the sentence of the Heavenly court can be commuted: Im kofer yushath ‘alav vënathan pidyon nafsho këchol asher yushath ‘alav (“If a ransom be imposed upon him and he pays the redemption of his life according to all that be imposed upon him.”) Raashi points out that the usage of the word im (“if”) is not conditional, and cites a similar example to support his conclusion that a kofer nefesh must be imposed on the owner, who must pay it.

The Mëchilta quotes Rabbi Yishma‘él: “Come and see the mercies of the Holy One, Blessed is He, on flesh and blood, for a man buys himself with money from the hands of Heaven, as it is said, ‘For you will count the heads of the sons of Israel and each man will give the ransom of his life.’” We have found our link.

As I noted supra, when there is a Temple, the funds go toward the purchase of public sacrifices. Today, as the Talmud instructs us (Bava Bathra 9a), the machatzith hasheqel donated in the synagogue on Purim night goes for tzëdaqa (loosely translatable here as “charity”). As such, it is no less a kofer negesh than it was in the desert. As we assert in the High Holy Days service, on Rosh HaShana it is decided, among other things, who in the next year will live and who will die, but tëshuva uthëfilla utzëdaqa ma‘avirin eth roa‘ hagëzéra (“repentance, prayer, and tzëdaqa remove the evil of the decree.”)

The donation of the half-sheqel was and is a mitzva, a duty incumbent on every Jewish man. In Talmudic times, half a sheqel of silver was a considerable sum of money, and poverty was not a stranger in the households of Israel. How could the Torah impose this heavy burden, this regressive tax, equally on the very poorest and very richest citizens?

The secret lies in its designation as tzëdaqa. The Ba‘al haTurim notes a curious fact, that the word ונתנו (“and they shall give”), which occurs in Exodus XXX, 12, reads the same both backwards and forwards. This, he concludes, is a hint that “whatever a man gives as tzëdaqa will return to him, and he will lack nothing because of this.”

The machatzith hasheqel thus teaches three lessons, for our time as for then: that tzëdaqa is kofer nefesh, that our very lives depend on our generosity to others; that it is a solemn duty, equally incumbent upon all, not simply a charitable act (the word’s literal meaning is “justice”); and that G-d in His mercy does not penalize us for doing mitzvoth whether in this world or the next; what we give is restored to us.