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By Rabbi Avraham
Fischer. A publication of the Orthodox Union in cooperation with the Seymour
J. Abrams Orthodox Union Jerusalem World Center
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Parshat
Mishpatim
February 9, 2002
In the first group of mitzvot that the Children of Israel receive as an extension of the Revelation at Sinai, they hear of the extent of liability for damages. Included among these mitzvot is the following:
And if an ox shall gore a man or a woman and he shall die, the ox must surely be stoned and its meat may not be eaten, but the owner of the ox shall be free. But if it is a goring ox from yesterday and the day before, and this has been testified to its owner but he has not guarded it, and it killed a man or a woman, the ox is to be stoned and also its owner will be put to death. When a ransom (KOFER) is imposed upon him, he must give as a redemption for his life whatever will be imposed upon him (Shemot 21:28-30).
Here, the principle is established that one is responsible, not only for acts he commits himself, but also for that which is committed by one's property, in this instance, by a dangerous animal.
If the aggression and danger of the animal has been firmly established, then "the ox is to be stoned and also its owner will be put to death", because the owner has neglected his duties. As the mishnah at the beginning of Sanhedrin (2b) argues, the comparison in this verse shows that the ox is judged under the same conditions as a person would be judged, namely, by a court of 23 judges.
The Torah commands, "and also its owner will be put to death." However, as Rashi is quick to add (v.29), the owner's death sentence is "by the hands of Heaven" rather than by the court.
But, why is this so? Why not take the text at face-value? Of course, Rashi's comment - which all the commentaries, without exception, accept - is part of the Oral Torah (Torah sheb'al peh). But, is there an internal logic that supports it?
Some commentaries rule out execution here by referring to its legal inconsistency:
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The Mechilta explains that the possibility of ransom as indicated in the verse
When a ransom is imposed upon him, he must give as a redemption for his life whatever will be imposed upon him (v.30)
precludes execution by the court, because of the commandment that one who is condemned to death by the court cannot obtain his freedom by the payment of ransom:
And you shall not take ransom for the life of a murderer who is guilty to die (Bamidbar 35:31).
However, because of Hashem's mercy, one who is liable to death from heaven is able to save himself by paying ransom.
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Rashi's reasoning, based on Sanhedrin 15a, is that one can be executed only as the result of his own act of murder:
The assailant must surely be put to death, he is a murderer (Bamidbar 35:21).
This means that one cannot be put to death by the court if his ox did the act of killing.
Other commentaries point to the textual inconsistency implicit in the death penalty:
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Ibn Ezra finds it significant that, rather than saying YAMUT (he will die, implying capital punishment), the text says YUMAT, [he] will be put to death, suggesting that the owner will meet his death, but only through Divine intervention. Ramban elaborates on this: although MOT YUMAT (he shall surely be put to death) is applied to one who is executed, the single word YUMAT never is. Any apparent contradictions are removed by other verses (for example, although Shemot 35:2 uses YUMAT for a Shabbat violator, Shemot 31:14 says MOT YUMAT). Both Ibn Ezra and Ramban emphasize that the ox's owner should have received the death penalty, had not the Torah afforded him the opportunity to ransom his life.
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Haamek Davar (R. Naftali Tzvi Yehudah
Berlin, 1817-1893) Cont...
draws attention to the order of the consequences of the ox's act: the ox is to be stoned and also its owner will be put to death (v.29).
It is appropriate for the verse to list the more severe punishment first, so the execution of the animal could not be followed by the execution of its owner. But death at the
hands of heaven is more lenient. By rights, the owner should have been executed by the court for his negligence that caused
the spilling of blood. If left unpunished, the owner will develop such a callous regard for human life that he will kill someone himself. Thus, he must pay KOFER to ransom and atone (K-F-R) for his life.
Rambam, in the Laws of Monetary Damage (chapter 10), delineates the laws of this ransom, which must be paid, even against the owner's will, by mortgaging his property. If the animal is ownerless, then there is no ransom to be paid. However, if the animal is owned by two partners, then each must pay the full KOFER for his individual atonement.
What emerges from Rambam's treatment of these laws is that the payment of the ransom is a duty that is the direct consequence of ownership. Ownership confers accountability, and responsibility is
evidence of ownership.
Imagine the nascent nation, the Children of Israel, hearing this mitzvah for the first time. Until recently, they were slaves, and they and their forebears knew nothing else but slave-status. Freedom, which they no doubt dreamed of for generations, represented unlimited opportunity. As slaves, they were completely dependent, and they could not anticipate the prospect of ownership or, consequently, of responsibility.
But now they are free. They can own.
Hashem teaches them, and us, that, while we are no longer slaves to Pharaoh, we are His servants. Coupled with that long-awaited opportunity for ownership comes a degree of responsibility that points to our very life's essence: To be held so accountable that we are answerable, not only for our actions, but even for the consequences of our failure to act - this is truly to be free.
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