Mishnas Chayim – Mishpatim: Something Fishy

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Chevra Lomdei Mishna
29 Jan 2008

View pdf – Parashat Mishpatim 5768

Kindly take a moment to study MISHNAS CHAYIM in the merit of
בערל בן שמואל ע”ה
a fellow Jew who passed away with no relatives to arrange Torah study on behalf of his Neshamah.
Do fish have to keep mitzvos?

Yes, you read that correctly.

I imagine that you’re somewhat bewildered by now. Okay, let’s back up a bit.

There are two main themes discussed in this week’s parsha. The latter section of the parsha deals with the revelation at Har Sinai and the giving of the Torah; the former discusses numerous dinei mamonos (financial laws). Amongst the various dinim set forth is the topic of negichah (goring), which discusses the procedures surrounding the unfortunate circumstance of one’s ox goring something—or worse, someone.

If someone’s ox fatally gores another person, the owner may be subjected to a fine. The ox also has to deal with the law. The Mishnah in Bava Kamma (4:5) states:

שוֹר שֶנָגַח אֶת הָאָדָם וָמֵת, מועָד, מְשַלֵם כֹפֶר, וְתָם, פָטור מִן הַכֹפֶר. וְזֶה וָזֶה חַיָבִים מִיתָה.

“If an ox fatally gores a person, the fine levied to the owner depends on the ox’s history. If it was a habitual offender, then the owner must pay the fine; if not, he is exempt. In either case, however, the ox must be put to death.”

Although the Torah refers to an “ox” when discussing these halachos, the Chinuch (Mitzvah 51-52) assures us that these laws hold true for other animals as well. Consequently, we find in another Mishnah (Eduyos 6:1) that, “Rav Yehudah ben Bava testified…. that a chicken was stoned to death in the Jerusalem court for having committed homicide.” (In case you’re wondering how a chicken could pull that off, Rashi in the Gemara (Berachos 27a) explains that it pecked on the soft spot of a baby’s head.)

The bottom line is: it doesn’t matter whether the perpetrating creature was an ox, a llama, or a platypus; if it did the deed, it dies.

Now, let’s talk about fish. If someone owns a piranha, for example, and it gobbles up a person, is the piranha subject to the death penalty?

In discussing this halachah, the Rambam (Hilchos Nizkei Mamon 10:2) writes, “It is the same whether it is an ox, or any other animal or bird; if it kills a person, it is subject to the death penalty.” Since the Rambam listed ‘animal’ (the Hebrew term is actually behaymah v’chayah which usually refers to mammals) and ‘bird’, but omitted ‘fish’, the implication is that fish are exempt from this punishment. Nevertheless, a difficulty remains: Why should the halachah differ when it comes to the aquatic class?

At this point, it is worthwhile to contemplate the underlying idea behind the halachah to kill a homicidal animal. The Ramban (Bereishis 9:5) wonders for whom this punishment is intended: the animal for its misdeed, or the owner for his negligence. Ostensibly, the latter rationale is the more likely option, since it is difficult to hold an animal accountable for its actions; after all, it’s just a dumb animal (no offense). However, the Ramban points out that a stray ox who fatally gores a person is also accorded the death penalty (Bava Kamma 4:7). Apparently, the capital punishment afforded to the ox is not intended as a penalty to the owner; therefore, it must be a punishment for the animal itself!

How are we to understand the demand upon animals to be held accountable for their deeds? The Kli Chemdah (Parshas Yisro, sec. 6) refers us to the Gemara in Shabbos (146a), which describes the wonderful impact of the revelation at Har Sinai upon its participants.

As a result of the original sin of Adam, all living creatures became infused with a type of spiritual impurity known as zuhama. The revelation at Har Sinai had a purifying effect on the Jewish people who were present, cleansing them of their zuhama.

The Ran (Shabbos 108a) explains that this purification process was not limited to the Jewish people; anyone else standing there at the time benefited as well. Thus, the land animals and birds that were standing in proximity to Har Sinai also merited to be cleansed of their spiritual pollution. Fish, on the other hand, are residents of the sea; as such, they were not by Har Sinai. Consequently, they missed out on this ‘spiritual decontamination,’ and retained their zuhama.

The Ran denotes a practical ramification of this occurrence. The parchment of a sefer Torah may be made using the skin of animals or fowl, since they underwent the spiritual cleansing process at Har Sinai. Fish, on the other hand, retain their zuhama, and are effectively disqualified for usage in objects of kedushah.

The Kli Chemdah asserts that in light of the above Gemaras, the idea that animals are accountable for their actions is much more palatable. After all, the animals did participate in the revelation at Sinai to a certain extent, and were spiritually affected by it. Of course, they did not become fully obligated in mitzvos like the rest of us. Nevertheless, they were charged with a limited responsibility: namely, don’t kill the humans.

With this, the Kli Chemdah concludes that we can understand the exemption of fish from the death penalty. As the Ran pointed out, only land creatures shared in the experience at Sinai. Consequently, only land creatures are held accountable and subsequently punished when they violate their ‘prohibition’ of homicide. Fish, on the other hand, were absent from Har Sinai and were never charged with the responsibility to avoid human casualty. Therefore, insofar as the death penalty is concerned, fish are ‘off the hook’.

Mishnas Chayim is brought to you by Chevrah Lomdei Mishnah, a network of Torah scholars dedicated to bringing the merits of Mishnah study to the greater Jewish public. Encompassing Mishnah, Gemara, and variety of other services, Chevrah Lomdei Mishnah primarily assists mourners interested in acquiring the merit of Torah study for their loved ones. To learn more visit www.societyformishnahstudy.org.

The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.