AND THESE ARE THE ORDINANCES WHICH THOU SHALT SET BEFORE THEM. The reason [why this whole section dealing with mishpatim — civil laws — is placed here, rather than being placed after the chukim — statutes — as is the order in the commandments given at Marah],¹. The “statutes” are the precepts for which the reasons are generally unknown. See Vol. I, p. 331. is that G-d wanted to explain to them first the civil laws. Thus we find that the first of the Ten Commandments dealt with the obligation of knowing of the existence of G-d, and the second one with the prohibition against idolatry, after which [following the giving of the Ten Commandments] He again instructed Moses, saying, Thus shalt thou say unto the children of Israel: Ye yourselves have seen that I have talked with you from heaven,² meaning that you, [Moses] should warn them again to take to heart that which they have seen, so that they will be careful to keep these precepts which I have commanded them. For Ye yourselves have seen corresponds to the commandment, *I am the Eternal thy G-d;*³, Verse 2. Ye shall not make with Me — gods of silver etc.⁴, Verse 20. — corresponds with Thou shalt have no other gods,⁵, Verse 3. thereby completing the subject of idolatry; likewise, And these are the ordinances corresponds to Thou shalt not covet,⁶, Verse 14. for if a man does not know the laws of house and field or other possessions, he might think that they belong to him and thus covet them and take them for himself. This is why He said, thou shalt set before them just ordinances, which they should establish amongst themselves, so that they will not covet that which does not legally belong to them. And thus did the Rabbis say in Midrash Rabbah:⁷ “The whole Torah depends on justice; that is why the Holy One, blessed be He, gave the civil laws directly after the Ten Commandments.” Similarly G-d explains in this section of These are the ordinances additional laws about idolatry,⁸ the honor of parents,⁹ murder,¹⁰, Verses 12-14. and adultery¹¹, 22:15-16. — which are all mentioned in the Ten Commandments. The Rabbis have explained:¹², 6. “Before them, but not before the Canaanites.” This interpretation is based on the observation that it should have said, “which tasim lahem” (“thou shalt set for them”) just as He said, *There ‘sam lo’ (He set for them) a statute and an ordinance;*¹³ thus since He said, which thou shalt set ‘liphneihem’ (before them), we interpret this to mean that they should be the judges, for it is with reference to a judge that this term [liphnei (before)] appears in Scripture: *And both the men, between whom the controversy is, shall stand before the Eternal, ‘liphnei’ (before) the priests and the judges;*¹⁴ *Until he stand ‘liphnei’ (before) the congregation for judgment;*¹⁵ ‘liphnei’ (before) all who know law and judgment.¹⁶ The Rabbis further explained: “Before them, but not before laymen.” They interpreted [the verse in this way] because with reference to the ordinances it is written: *Then his master shall bring him unto ‘ha’elohim;’*¹⁷ *the cause of both parties shall come before ‘ha’elohim;’*¹⁸, 22:8. *and it is also written, and he shall give ‘biphlilim’ (as the judges determine)*¹⁹ — these terms referring to judges who are experts in the law, and who had received ordination²⁰ [in an unbroken chain from the time of those who had been duly ordained] by Moses our Teacher. This is why He said here that these ordinances are to be set before them, meaning before the elohim [expert, ordained judges] that He will mention further on, but not before Canaanites, and not before one who is not a judge by the standard of the Torah, such as a layman in this respect. It is forbidden to appear before such a person to act as a judge, just as it is forbidden to bring it before the Canaanites, even if he knows that this layman knows the correct law and will render him a proper decision. Even so it is forbidden for the litigant to set him up as a judge and complain before him so that he orders the other party to come to court before him, and the layman himself is also forbidden to act as their judge. Now even though the Sages have mentioned these two groups [the layman and the Canaanite] together, there is a difference between them, in that if the two litigants are willing to come before an Israelite who is a layman, and accept him upon themselves, it is permissible for them to do so, and they must abide by his decision, but to come before the Canaanites to act as judges between them, is forbidden under all circumstances, even if the Canaanite laws are in that particular case the same as our laws.

footnotes: ¹ Above, 15:25: There He made for them ‘chock’ (a statute) ‘umishpat’ (and an ordinance) ² Above, 20:19. ³ Ibid. ⁴ Ibid. ⁵ Ibid. ⁶ Ibid. ⁷ Shemoth Rabbah 30:15. ⁸ Further, 22:19. ⁹ Further, Verses 15 and 17. ¹⁰ Ibid. ¹¹ Ibid. ¹² Tanchuma Mishpatim ¹³ Above, 15:25. ¹⁴ Deuteronomy 19:17. ¹⁵ Numbers 35:12. ¹⁶ Esther 1:13. ¹⁷ Further, Verse 6. ¹⁸ Ibid. ¹⁹ Further, Verse 22. ²⁰ The process of investiture with judicial rights and functions. Ordination was conferred by three Sages, only one of whom himself had to be duly ordained. Ordination was valid only if both the ordainers and the ordained were in the Land of Israel. Once received in the Land of Israel, however, the authority of ordination became effective outside the Land as well.

IF THOU BUY A HEBREW SERVANT. G-d began the first ordinance with the subject of a Hebrew servant, because the liberation of the servant in the seventh year contains a rememberance of the departure from Egypt which is mentioned in the first commandment, just as He said on it, And thou shalt remember that thou wast a bondman in the land of Egypt, and the Eternal thy G-d redeemed thee; therefore I command thee this thing today.²¹ It also contains a remembrance of the creation, just as the Sabbath does, for the seventh year signals to a servant a complete rest from the work of his master, just as the seventh day of the week does. There is in addition a ‘seventh’ amongst the years, which is the jubilee, for seven is the chosen of the days [to be the Sabbath], and of the years [to be the Sabbatical year], and of the [seven] Sabbaticals [to be the jubilee]; and they all point to one subject, namely, the secret of the days of the world — from bereshith (in the beginning) till vayechulu (and they were finished).²² Therefore this commandment deserved to be mentioned first, because of its extreme importance, alluding as it does to great things in the process of creation.²³ This is why the prophet Jeremiah was very stringent about it and said, *Thus saith the Eternal, the G-d of Israel: I made a covenant with your fathers;*²⁴ At the end of the seven years ye shall let go every one his manservant, and every one his maidservant.²⁵, Verses 14 and 10 (Ramban combined here parts of these verses). And on account of its violation, G-d decreed the exile,²⁶, Verses 17-22. just as the Torah decreed exile for the Sabbatical rest of the land which was not observed,²⁷ as I will yet write,²⁸, 25:2. with the help of the Rock. When He finished stating the ordinance of this [first] commandment as it applies to Hebrew servants, He began the ordinance of the commandment, Thou shalt not murder,²⁹ since it is the worst [sin] and then [He stated the ordinances of the commandments] to honor one’s parents, and of Thou shalt not steal,²⁹ and then He went back to the ordinance of one who smites his fellow-man but did not kill him,³⁰ and then to the murder of a bondman, which is worse than the killing of an offspring,³¹ and after that to [injury to] the limbs of Israelites and bondmen,³², Verses 24-27. and then to cases of death inflicted by cattle which cause injury.³³, Verses 28-32. All the sections are thus arranged in logical sequence and in proper order.

footnotes: ²¹ Deuteronomy 15:15. ²² Genesis 2:1. See Ramban Vol. I, pp. 61-64. ²³ Ramban’s reticent and challenging language is illuminated in an essay by I. Weinstock (B’maglei Haniglah V’hanistar, pp. 151-241) where he traces the development of this Cabalistic doctrine: The universe is subject to cycles of seven thousand years; after each six thousand years of growth and activity the seventh thousand is one of “rest” — destruction. This process repeats itself seven times — representing a total of forty-nine thousand years, the fiftieth thousand being the jubilee when all existence returns to its beginnings. This phenomenon applies to the planet on which we live as well as to the worlds above us. One can thus get a glimpse into the meaning of Ramban’s words before us, that this commandment “alludes to great things in the process of creation.” ²⁴ Jeremiah 34:13. ²⁵ Ibid. ²⁶ Ibid. ²⁷ Leviticus 26:34-35. ²⁸ Ibid. ²⁹ Above, 20:13. ²⁹ Above, 20:13. ³⁰ Further, Verses 18-19. ³¹ See further Verse 22 — that for killing an unborn child a fine is paid, while in the case of the bondman, if he did not survive for twenty-four hours after he was struck by the master, the master is liable to death (Verses 20-21). ³² Ibid. ³³ Ibid.

THEN HIS WIFE SHALL GO OUT WITH HIM. Rashi commented: “But who brought her in, that Scripture need say that she shall go out with him? But [by saying this], Scripture tells us that he who acquires a Hebrew servant is obliged to provide for the food of his wife and children.” This is a Midrash of the Sages.³⁴ Now [even though the children are not mentioned in this verse, but only his wife,] the Rabbis have included the children together with the wife in this duty of the master, on the basis of what is written further on, Then he shall go out from thee, he and his children with him.³⁵ I am not clear on this law as to whether the earnings of the woman and children belong to the master during the time he is supporting them. It appears to me that the master takes the place of the husband [in this respect]. For the Torah had compassion on the wife and children, whose lives are hanging in suspense,³⁶ and who expect [to be supported from] the husband’s earnings, since now that he is sold as a servant, they are in danger of being lost in their misery. Therefore the Torah commanded the master who is now entitled to the servant’s labor, to act towards them as he [the servant] would. If so, the master only has to assume the responsibilities of the husband, [and no more]; thus he is entitled to their labor as is the husband, and in return he must feed and support them. This is the meaning of the expression, then his wife shall go out with him, since the servant’s wife was together with him as a handmaid to his master, for the labor of both of them belongs to him, in return for which he is obliged to give them food. Thus the only difference between husband and wife is that the wife has a right to go away as she pleases, [and is not bound to work for her husband’s master if she does not want to be supported by him, whilst the husband, who is the servant, is bound to the master]. Similarly, the master’s obligation to support the children is limited to the time that the father is responsible for them, namely when they are minors, or as long as is customary to feed them, as Rashi explained in Tractate Kiddushin.³⁷ All this is out of G-d’s compassion for them [the wife and children], and for the servant as well so that he should not die in his anguish, in the knowledge that whilst he is toiling in a strange house, his children and wife are neglected. Now even though he is not obliged by law of the Torah to support them, as has been explained in the Talmud, Tractate Kethuboth,³⁸ but since it is the normal way of life for a man to support his wife and small children, G-d in His mercies commanded the buyer [of the servant] to act to them as a merciful father. The meaning of the Sages in speaking of banav [literally: “his sons”] is both sons and daughters. I have seen written in the Mechilta:³⁴ “I might think that the master is obliged to support the betrothed [of the servant] and the childless widow of his brother who is waiting for him to marry or reject her? Scripture therefore says, his wife, thus excluding the brother’s childless widow who is waiting for him, since she is not yet his wife. With him, this excludes the betrothed who, [even though she is his wife], is not yet with him.” This Mechilta is a proof to the law which I have stated, for since it is not customary for the betrothed and the childless brother’s widow to be supported by the man [in this case the servant], therefore the Torah did not impose their support upon the master either. And even if the brother-in-law or the bridegroom became liable by law at a certain time known in the Talmud³⁹ (the heave-offering) as if she was already his wife. A later Mishnah though, ruled that a woman may not eat heave-offering until she has entered the bride-chamber (Kethuboth 57 b). to support them, that obligation was in the nature of other debts they may have, and therefore the master did not become liable to support them. Again I have found in another Mechilta of Rabbi Shimon:⁴⁰ “If he be married then his wife shall go out with him. Just as the master is obliged to feed the servant, so he is obliged to feed his wife and children. Still I might say: if the servant had a wife and children before he was bought, then his master is obliged to feed them, because he bought him on that condition, but if he had a wife and children only after he was bought I might think that his master is not obliged to feed them. Scripture therefore says, if he be married⁴¹, then his wife shall go out with him.” The word “wife” is thus mentioned twice, once to indicate etc. (see text). etc. There are thus two wives mentioned here, one referring to a wife that he had before his master bought him, and the other referring to a wife he had after he was bought. I might think that even if he had just a betrothed wife, or a childless brother’s widow who is waiting for him, whom the servant himself is not obliged to feed, that nonetheless his master is obliged to support them, and proof for that argument I might find in the fact that the husband himself is not obliged [by law of the Torah, as explained above] to feed his own wife and children, and yet, the master of the servant is obliged to feed the wife and children of his servant; Scripture therefore says, then his wife shall go out with him — that wife who is with him, the master is obliged to feed, but he is not bound to feed a wife who is not with him. I might think that even if the servant’s wife was one with whom it is not correct for him to continue living — such as a widow married to a High Priest, or a divorcee or profaned woman married to a common priest⁴² — [that the master is bound to feed her]; Scripture therefore says, then his wife shall go out with him — one that is fit to live with him, but not this one etc. I might think that even if he married without the master’s knowledge [the master is obliged to feed her]; Scripture therefore says, if ‘he’ be married — just as ‘he’ was acquired with the master’s knowledge, so his wife [whom the master must support] means one taken with the master’s knowledge. I might think that the earnings of his sons and daughters belong to the master, and it is logical that it be so: for if we see in the case of a Canaanite bondman, whose master is not bound to feed him, that nonetheless the earnings of his sons and daughters belong to the master, then surely it is logical that in the case of a Hebrew servant, whose master is obliged to feed him, that the earnings of his sons and daughters should belong to his master! Scripture therefore says: he (if ‘he’ be married) — it is he whose earnings belong to his master, but not those of his sons and daughters. Then his wife shall go out with him — do not separate him from his wife; do not separate him from his children.” Thus far the language of this Beraitha.⁴³, Note 209. Yet I continue to say⁴⁴ as I have written above, that if the servant’s wife and children want to be supported by the master, that he may take their earnings, and this Beraitha quoted above intends only to tell us that they are not his by absolute right, as is the law of the Canaanite bondman, or as is the law of the Hebrew servant himself, [who must of necessity work for their master], but they [the wife and children of the Hebrew servant] can say to him: “We will not be fed by you, and we will not work for you.” What is new in this Beraitha is that if the servant married without the consent of his master, he is not bound to feed the wife or her children, for since it is within the power of his master to give him a Canaanite bondmaid, he is not obliged to feed this Israelite woman. The Rabbis further interpreted the word imo (with him) to teach us that you are not to separate him from his wife and children, which means to say that the master cannot tell him: “Be together with the handmaid I gave you and sleep with her at night, and not with the Israelite wife,” but the servant has the right to choose for himself.

footnotes: ³⁴ Mechilta on the Verse here. ³⁵ Leviticus 25:41. ³⁶ See Deuteronomy 28:66. ³⁷ Kiddushin 22a. See my Hebrew commentary p. 413. ³⁸ Kethuboth 49 a-b. ³⁴ Mechilta on the Verse here. ³⁹ According to a first [i.e., an older] Mishnah, if after such time as the law allows for the preparation of the wedding, the bridegroom postponed it, he is liable to support her, and she may eat from his goods, so that if she is an Israelite’s daughter and betrothed to a priest, she may eat terumah ⁴⁰ In Hoffman’s edition, p. 120. — See Vol. I, p. 603, Note 245, for explanation of the term “another.” ⁴¹ Literally: “if he be the husband of a wife ⁴² See Leviticus 21:7;14. ⁴³ See Seder Bo ⁴⁴ In spite of the fact that this Beraitha apparently contradicts what Ramban said above — namely, that during the time of the Hebrew servant’s servitude the earnings of his wife and minor children belong to his master, since he is obliged to feed them, whereas here the Beraitha seems to be saying the opposite — “Yet I continue to say” writes Ramban, “as I have written above etc.”

IF HIS MASTER GIVE HIM A WIFE. “Scripture is speaking of a Canaanite woman. Or perhaps this is not so; but Scripture here speaks only of an Israelite woman?! Scripture therefore says, the wife and her children shall be her master’s. Consequently, it must be speaking of a Canaanite woman.” This is the language of the Beraitha⁴³, Note 209. taught in the Mechilta.³⁴ Now Rashi wrote [in explanation of this Mechilta]: “For a Hebrew maidservant also goes free at the end of six years [just as a Hebrew manservant does], or even before the end of six years if she shows signs of puberty, for it is said, If thy brother, a Hebrew man, or a Hebrew woman, be sold unto thee, he shall serve thee six years.”⁴⁵ can only be speaking of a Canaanite woman. But this is not quite correct. For if we say [as the Beraitha above attempted to,] that the verse here speaks of an Israelite woman, it could no longer refer to the case of a father selling his minor daughter, about whom the law is given that when she shows signs of puberty she goes free, for how could the master give her as a wife to his Hebrew servant, since he has no power to hand her over to any other man [except to designate her to be his own wife, or that of his son — as is explained further in Verses 8-9]!⁴⁶ who sold herself as a maidservant. So how then could Rashi support his argument [that if she were an Israelite woman, she would go free “if she shows signs of puberty],” when the Beraitha must of necessity be referring not to a minor but to a woman of age? (Mizrachi). Similarly, the proof that Rashi mentioned, namely that she also goes free at the end of six years, is only so in accordance with his own words which he wrote⁴⁷ that a person who sells himself [on account of his destitution] is sold for a maximum of six years; but in the Talmud⁴⁸ these are the words of a single Sage [Rabbi Eliezer], but the accepted opinion is that one who sells himself can be sold for six years or more. Now if so, the case of a woman who goes free at the end of six years can only be when her father sold her [as a minor, but in that case the master has no right to give her as a wife to his Hebrew servant, but only to designate her as his own wife or that of his son]!⁴⁹ But that which the Rabbis have said [in the Beraitha above, on the basis of the verse, the wife and her children shall be the master’s]: “Consequently, Scripture must be speaking of a Canaanite woman” — the meaning thereof is as follows: Since He stated, the wife and her children shall be the master’s [it must be speaking only of a Canaanite woman], for the children of a Canaanite bondmaid are the master’s since her child has the same status as she does, but in the case of an Israelite woman — even if she were of age [in which case her master could give her to his Hebrew servant as a wife], and even if we were to say that a woman may sell herself as a maidservant⁵⁰ (Verse 7) — a man can sell himself, but a woman cannot sell herself.” But Ramban is writing only on the assumption that the Beraitha introduced this as a hypothesis finally to be disproved. See my Hebrew commentary pp. 515-516. — her children are the father’s [not the master’s].

footnotes: ⁴³ See Seder Bo ³⁴ Mechilta on the Verse here. ⁴⁵ Deuteronomy 15:12. “This teaches you that a Hebrew maidservant also goes free after six years’ service” (Rashi). Consequently the verse here which states the wife [and her children] shall be her master’s ⁴⁶ Accordingly, the Beraitha above that attempted to argue that Scripture here speaks of an Israelite woman [given by the master to his Hebrew servant], must refer only to a Hebrew woman of age ⁴⁷ Above, Verse 2, Rashi. ⁴⁸ Kiddushin 14b. ⁴⁹ So both proofs of Rashi as to why Scripture cannot be speaking here of an Israelite woman, [1. that a Hebrew maidservant also goes free at the end of six years; 2. that even before the end of six years, she goes free if she shows signs of puberty], have no application here for reasons explained above. ⁵⁰ A woman really cannot sell herself; as the Mechilta puts it: “And if a man sell

THEN HIS MASTER SHALL BRING HIM UNTO ‘HA’ELOHIM’ — “to the court. The servant must take counsel with those who sold him.”⁵¹ [Thus is the language of Rashi.] And Rabbi Abraham ibn Ezra wrote that the judges are called elohim because they uphold the laws of G-d on earth. In my opinion Scripture uses these expressions: *Then his master shall bring him unto ‘ha’elohim;’ the cause of both parties shall come before ‘ha’elohim,’*⁵² in order to indicate that G-d will be with the judges in giving their judgment. It is He Who declares who is just, and it is He Who declares who is wicked. It is with reference to this that Scripture says, he whom ‘Elokim’ (G-d) shall condemn.⁵² And so did Moses say, *for the judgment is G-d’s;*⁵³ so also did Jehoshaphat say, for ye judge not for man, but for the Eternal, and He is with you in giving judgment.⁵⁴ Similarly Scripture says, G-d standeth in the congregation of G-d; in the midst of ‘elohim’ (the judges) He judgeth,⁵⁵ that is to say, in the midst of a congregation of judges He judges, for it is G-d Who is the Judge. And so also it says, Then both men, between whom the controversy is, shall stand before the Eternal.⁵⁶ And this is the purport of the verse, For I will not justify the wicked,⁵⁷ according to the correct interpretation. In Eileh Shemoth Rabbah I have seen it said:⁵⁸ “But when the judge sits and renders judgment in truth, the Holy One, blessed be He, leaves, as it were, the supreme heavens and causes His Presence to dwell next to him, for it is said, When the Eternal raised them up judges, then the Eternal was with the judge.⁵⁹

footnotes: ⁵¹ This section speaks here of one who was sold by the court for a theft which he had committed and was not able to pay for (further, 22:2). On refusing to go free at the end of his six years of service, the servant is to take counsel with his vendors [the court] “and they will advise him to go free, for when he is free he can serve G-d in more ways than he could as a servant etc.” (Zeh Yenachmeinu — commentary on the Mechilta). ⁵² Further, 22:8. ⁵² Further, 22:8. ⁵³ Deuteronomy 1:17. ⁵⁴ II Chronicles, 19:6. ⁵⁵ Psalms 82:1. ⁵⁶ Deuteronomy 19:17. ⁵⁷ Further, 23:7. ⁵⁸ Shemoth Rabbah 30:20. ⁵⁹ Judges 2:18.

AND HE SHALL SERVE HIM ‘L’OLAM’ (FOREVER). Our Rabbis interpreted⁶⁰ this to mean until the jubilee year. And Rabbi Abraham ibn Ezra wrote that “the meaning of olam in the Sacred Language is ‘time.’ It hath been already, ‘l’olamim’ which were before us means ‘the times’ [or ‘the ages’] which were before us.⁶¹ *And there he may abide ‘ad olam’*⁶² [cannot mean ‘forever,’ for Samuel did not stay all his life in Shiloh; it must therefore mean ‘until a certain time,’ i.e., until he comes of age]. This is why the Rabbis have said, and he shall serve him l’olam means up to the time of the jubilee year, for of all appointed seasons in Israel the jubilee year is the most remote, and the going out to freedom is as if the world was made anew for him. The sense of the verse is then, that he should return to his status in his first time, when he was free.” The student learned [in the mystic lore of the Cabala] will understand that l’olam is to be taken in its usual sense [i.e., forever], for he who works until the jubilee year has worked all the days of old.⁶³ In the words of the Mechilta:⁶⁰ “Rabbi⁶⁴, “Our holy teacher,” or simply “Rabbi.” says: Come and see that olam cannot mean more than fifty years, for it is said and he shall serve him ‘l’olam,’ which means until the jubilee year.” Now Rabbi Abraham ibn Ezra forgot that which he wrote with understanding in another place.⁶⁵: “This is what the Rabbis have received by tradition concerning the verse, and he shall serve him ‘l’olam,” meaning that he is to serve him until the jubilee year.” Thus Ibn Ezra did understand the verses there and found in them Scriptural proof that olam means fifty years, whilst here he wrote that it means “time.” Apparently, “he forgot” — as Ramban puts it — “what he wrote with understanding elsewhere.”

footnotes: ⁶⁰ Mechilta here on the Verse. ⁶¹ Ecclesiastes 1:10. ⁶² I Samuel 1:22. ⁶³ Isaiah 63:9. See also above Note 23. ⁶⁰ Mechilta here on the Verse. ⁶⁴ The epithet for Rabbi Yehudah Hanasi, the redactor of the Mishnah, or as he is often known Rabbeinu Hakadosh ⁶⁵ In his commentary to Leviticus 25:40-41, Ibn Ezra wrote on the verses, He shall serve with thee unto the year of jubilee. Then shall he go out from thee…

SHE SHALL NOT GO OUT AS THE MENSERVANTS DO. This means that the Hebrew maidservant does not go out free “in consequence of the loss of a tooth or an eye, as Canaanite slaves do.”⁶⁶ Thus is Rashi’s language, and our Rabbis interpreted it likewise.⁶⁰ Indeed it is so, for a Hebrew servant is not called eved⁶⁷ [as in Verse 2 here: if thou buy an ‘eved ivri’ — a Hebrew servant] but never just eved, which term by itself signifies a Canaanite bondman. Here in Verse 7 where it just says ha’avadim (menservants) it must therefore refer to the Canaanite bondmen. For a similar statement of Ramban see also further Verse 20. without any further qualification. But I wonder: why does Scripture find it necessary altogether to tell us this [that a Hebrew maidservant does not go out free because of the loss of a tooth or eye, as Canaanite bondmen do]?⁶⁸ Perhaps it is to tell us that we should not argue by applying the method of kal vachomer⁶⁹ Note 208. — The kal vachomer in this case would be as follows: A Canaanite bondwoman who does not go out free at the end of six years or in the jubilee year, does go out free because of the loss of any of the chief external organs. It is therefore only logical that a Hebrew maidservant, who does go out free at the end of six years or in the jubilee, should surely go out free because of the loss of any chief external organs. from a Canaanite women, that a Hebrew maidservant goes out free because of the loss of a tooth or eye. This law is stated expressly in the case of a Hebrew woman, but such is also the law for a Hebrew man, who has been compared to her [thus he too does not go out free because of the loss of any of the chief external organs]. The author of the ‘Hilchoth Gedoloth,’⁷⁰ (613) Commandments, for in a preface to this work the author was the first scholar who attempted to define each separate commandment (see my foreword to “The Commandments,” Vol. I pp. viii — ix). wrote, however, that [the verse is not needed to exclude this kal vachomer,⁶⁹ Note 208. — The kal vachomer in this case would be as follows: A Canaanite bondwoman who does not go out free at the end of six years or in the jubilee year, does go out free because of the loss of any of the chief external organs. It is therefore only logical that a Hebrew maidservant, who does go out free at the end of six years or in the jubilee, should surely go out free because of the loss of any chief external organs. for even if Scripture had not excluded it, we could not have argued that a Hebrew woman should go out free in consequence of the loss of a tooth or eye], because the going forth to freedom by slaves on account of the loss of a tooth or eye is a penalty [to the master], and you cannot derive a law by logical argument from penalties. The author of the ‘Hilchoth Gedoloth’ thus considered this verse a negative commandment⁷¹ wherein G-d warns the master that if he wants to send her out free because of the loss of a tooth or eye, that he transgresses a prohibition; but instead he is to pay her monetary compensation for the tooth or eye, and she shall stay with him up to the time [of six years, or before if she produces signs of puberty], to be designated as the master’s wife [or his son’s]. For it would be a great injustice if, after causing her the loss of a tooth in his anger and blemishing her thereby, he would then send her out of his house, when she had hoped to become his wife. Moreover, many times the monetary compensation for the damage done to the chief external organs, is more than the earnings for her labor if her days as a handmaid have nearly terminated. Therefore Scripture was strict upon the master and made a clear prohibition, so that he should not rob her of the monetary compensation due to her for the loss of any of her chief organs, even if he should want to let her go free on account of them. It may be that sending her to freedom is itself forbidden before the fixed time, for Scripture has obliged the master to support her and that she stay with him, in case she finds favor in his eyes and becomes his wife; just as He warned him with a prohibition that [after he marries her and takes another wife] her food, her raiment, and her conjugal rights shall he not diminish.⁷² In accordance with this opinion [the author of the ‘Hilchoth Gedoloth’] counted the verse, She shall not go out as the menservants do among the three hundred and sixty-five negative commandments.

footnotes: ⁶⁶ See further, Verses 26-27. ⁶⁰ Mechilta here on the Verse. ⁶⁷ The Hebrew servant may be called eved ivri ⁶⁸ For what reason might I have thought that she does go out free, so that Scripture should find it necessary to tell us that such is not the case? ⁶⁹ See in Seder Bo ⁷⁰ Rabbi Shimon Kairo, who flourished in the second half of the eighth century — when the Gaonic period was at its height. Considered a most authoritative work on Rabbinic law, the ‘Hilchoth Gedoloth’ was a pioneer in the field of Taryag ⁶⁹ See in Seder Bo ⁷¹ As opposed to a mere “negation,” where the verse just negates a certain law from being applicable, without constituting a prohibition. In his Book of the Commandments, Maimonides dedicated the eighth principle to the clarification of this distinction between a negation and a prohibition, and without mentioning the name of the author of the ‘Hilchoth Gedoloth,’ differs with him on the interpretation of this verse, which in his opinion merely states that there is no obligation on the part of the master to let her go free where he causes her the loss of one of her organs. [See in my translation, “The Commandments,” Vol. II pp. 390-393.] In his notes to Maimonides’ Book of Commandments, Ramban came to the defense of the ‘Hilchoth Gedoloth.’ ⁷² Verse 10.

L’AM NOCHRI’ HE SHALL HAVE NO POWER TO SELL HER. “Neither her master nor her father has the right to sell her to another [Hebrew man].⁷³ [literally: “unto a foreign people”] as signifying “unto a strange man,” i.e., to another Israelite. Thus the verse is stating that neither the father nor the master has a right to resell her. Ramban will question this interpretation. Seeing he hath dealt deceitfully with her — if he [i.e. the master] intends to act deceitfully towards her and not to fulfill the commandment of designating her as his wife [or his son’s]. So also did her father act deceitfully towards her, by selling her to this master.” Thus far Rashi’s language. And if so, l’am nochri would be like l’ish nochri (to a strange man), but we find in all Scripture no parallel to such a usage [that am (people) should be understood in the sense of “man”]. Perhaps the letter lamed in the word l’am draws along with it a similar letter in the next word, thus making it: ‘l’am l’nochri’ he shall have no power to sell her, and the explanation thereof would be similar to the verse, Thou gavest him to be food ‘l’am l’tziyim’ (to the folk inhabiting the wilderness)⁷⁴ where the second word l’tziyim explains: who is the folk? — the men who inhabit the wilderness; so here too He says, he shall have no power to sell her ‘l’am’, and He explains: who is l’am? — l’nochri, that is to say, to any stranger from the whole people [i.e., to another Israelite]. The term nochri here will then be similar in usage to the expressions: and thy labors in the house of a ‘nochri’ (stranger),⁷⁵ which means in the house of another man; even from the ‘nochriyah’ (the strange woman) that maketh smooth her words,⁷⁶, 2:16. meaning the woman who is not his wife. All this I have written in order to uphold the words of the Sages⁷⁷ who say that a man is not permitted to sell his daughter twice into the status of a handmaid, thus holding to the explanation: since he has once dealt deceitfully with her [by selling her to such a status of a handmaid], he has no more the right to sell her. But I have seen in the Mechilta:⁶⁰ “‘L’am nochri’ he shall have no power to sell her, — this is a warning to the court that he [i.e., the father] should not sell her to an alien [i.e., a non-Israelite].” It would thus appear from their language that this verse is not meant as an admonition against the father reselling her to this Israelite master or to another one, but is a prohibition against her being sold altogether [even the first time] to a non-Israelite, so that a man may not sell his minor daughter to an idolator as a handmaid. [It was necessary for this to be stated] because in the case of a Hebrew servant He said, and he sell himself unto the stranger who is a settler with thee, or to the offshoot of a stranger’s family,⁷⁸ therefore it had to say that this should not be done to a woman. The reason for it is obvious.⁷⁹ This surely is the plain meaning of Scripture, that after the father — the vendor — redeemed her from her first master, he cannot sell her to an idolator, and the same law applies to the original sale. Scripture, however, [had to state this prohibition in the case of a re-sale], because sometimes a man may very much want to redeem his daughter from a master who did not take her as his wife, and will want to sell her to an idolator for a year or two with the intention of then taking her out from him; therefore Scripture warned him against doing this. Or it may be that this expression [i.e., ‘l’am nochri’ he shall have no power to sell her] refers back to the beginning of this subject: And if a man sell his daughter to be a maidservant⁸⁰ — he shall have no power to sell her to a foreign man. If so, then the Rabbis’ interpretation in the Talmud⁷⁷ that a man may not resell his daughter into the status of a handmaid, [even to an Israelite], is derived [not from ‘l’am nochri’ he shall have no power to sell her, but] from the [apparently] superfluous expression: seeing he hath dealt deceitfully with her. For to a non-Israelite he never has power to sell her; so why did G-d say: seeing he hath dealt deceitfully with her, [since he cannot sell her even once to a foreign man], and the meaning of that expression is that since he acted once deceitfully with her by selling her into a status of a handmaid, he cannot do so another time? Therefore the Rabbis interpreted the verse thus: “to a foreign people he shall have no power to sell her [altogether], and when he hath dealt deceitfully with her [he also has no power to sell her];” that is to say, he shall have no power to sell her if he dealt deceitfully with her, for after he sold her once [to an Israelite], he cannot sell her again. There are many instances where the Rabbis interpreted the verses in such a manner. [Thus we find: Unto the stranger that is within thy gates thou shalt give it that he may eat it, or thou mayest sell it unto a foreigner⁸¹ — which Rabbi Meir interpreted]:⁸² “Read the verse thus: unto the stranger that is within thy gates thou shalt give it that he may eat it, or thou mayest sell it; thou shalt give it that he may eat it or thou mayest sell it unto a foreigner.” Similarly they interpreted here⁸³ then shall she go out for nothing, without money,⁸⁴ which, on account of the redundant language, [“for nothing,” “without money”] they made the basis for two additional ways of the Hebrew maidservant regaining her freedom: “she shall go out for nothing, and she shall go out without money;” thus establishing that she goes out to freedom when she produces signs of puberty, or signs of fuller development if she had no signs of puberty — this being that maturity of the barren woman, [who is incapable of conception], as is stated in the beginning of Tractate Kiddushin.⁸³ The plain meaning of Scripture in this section is as follows: If a man sell his minor daughter to be a maidservant, she shall not go out as these menservants, [i.e., the Hebrew menservants] mentioned [above in Verses 2-6,] who go out to freedom in the seventh year and in the jubilee year: for the master⁸⁵ can never send her away from his house if the maiden pleases him and she obtains kindness of him,⁸⁶ but he is to take her for a wife as is his will. But if she pleaseth not her master, who has not espoused her to be his wife — for he who buys an Israelite’s daughter does so with the intention of taking her as his wife, thus she is under ordinary conditions designated for him; but now if her master does not desire her, then shall the father mentioned redeem her, for as soon as the master says: “I do not want to marry her,” it is forbidden for the father to leave her any longer under his authority, nor may he sell her to a foreign people in case he comes to deal deceitfully with her, for it is deceit for a man to sell his daughter except to someone who can marry her. Or the meaning thereof may be that anyone who sells his daughter [even to an Israelite], deals deceitfully with her.

footnotes: ⁷³ Rashi thus interprets l’am nochri ⁷⁴ Psalms 74:14. ⁷⁵ Proverbs 5:10. ⁷⁶ Ibid. ⁷⁷ Rabbi Eleazar and Rabbi Shimon — in Kiddushin 18a. ⁶⁰ Mechilta here on the Verse. ⁷⁸ Leviticus 25:47. ⁷⁹ “That she not be exposed to the dangers of immorality.” (Bachya). ⁸⁰ Verse 7. ⁷⁷ Rabbi Eleazar and Rabbi Shimon — in Kiddushin 18a. ⁸¹ Deuteronomy 14:21. ⁸² Pesachim 21b. ⁸³ Kiddushin 4a. ⁸⁴ Verse 11. ⁸³ Kiddushin 4a. ⁸⁵ In the Tur who quotes Ramban: “the father.” That is to say, if the maiden pleased the master and he wishes to marry her, the father cannot take her out from his house. ⁸⁶ See Esther 2:9.

AND IF ‘YI’ODENAH’ (HE ESPOUSE HER) UNTO HIS SON, HE SHALL DEAL WITH HER AFTER THE MANNER OF DAUGHTERS. In line with the plain meaning of Scripture, it is possible that G-d is saying that if the buyer yi’odenah for his son, which means that he espoused her to him — for the term yi’ud is an expression of appointing, such as: *he tarried longer than the set time which ‘y’ado’ (he had appointed him)*⁸⁷ — then he shall do unto her after the manner that a man does for his own daughters — he is to give her of his own according to the dowry of virgins.⁸⁸ He thus commanded this as He did in the law of outfitting the emancipated servant,⁸⁹ and it is all an expression of His goodness, magnified be He! And in accordance with the interpretation of our Rabbis, which is the truth, the meaning of the verse is: after the manner of daughters whom parents marry off, so shall the son [of the master] deal with her. And then He explains [what is “the manner of daughters”] that if he take him another wife, her food, her raiment, and her conjugal rights — that is, of this one [the former maidservant] — he shall not diminish.⁹⁰ It is obvious that if he did not marry another woman he must not diminish her rights, but Scripture speaks of that which is usual.⁹¹. But this is by no means to be understood that it was “the usual” thing to take another wife. Now Rashi explained: “sh’eirah⁹⁰ means food; k’suthah is, as the literal sense of the word, raiment; onatha is the marital duty.” And so did Onkelos render sh’eirah: zivanah (food). But in the Gemara⁹², Note 204. the Rabbis said with reference to the Sage who held this opinion [that sh’eirah means food]: “And this Tanna⁹³, Note 451. holds that the alimentation of one’s wife is a law of the Torah. For we have been taught: sh’eirah — this means her food, and so it says, He caused ‘sh’eir’ (flesh) to rain upon them as the dust⁹⁴ etc.” And from the subject under discussion in that Gemara it is understood that this is the opinion of a single Sage, whilst the accepted law is that the alimentation of one’s wife is a Rabbinical enactment. And even according to the plain meaning of Scripture, why should it mention food under the term sh’eir which means “flesh;” it should rather have mentioned lachmah (her bread), for man lives by bread⁹⁵ and his obligation towards her is [mainly] in that sustenance. Now Rabbi Abraham ibn Ezra thought to correct this, and so he explained sh’eirah as meaning food which builds up her sh’eir, namely her flesh. But there is no sense in Scripture saying that the “husband diminish not her flesh!” Therefore I say that the meaning of sh’eir everywhere is flesh close and near to one’s own, the root thereof being derived from the expression sh’eir b’saro,⁹⁶ that is his close flesh outside that of the flesh of his own body. Thus relatives are called *sh’eir: to any sh’eir b’saro’ (that is near of kin to him);*⁹⁶ they are ‘sha’arah’ (near kinswomen),⁹⁷, Verse 17. this being associated with the expressions: *surely thou art my bone and my flesh;*⁹⁸ of whom the flesh is half consumed.⁹⁹ Similarly, And I will cut off from Babylon a name, ‘ush’ar’ offshoot and offspring,¹⁰⁰ means a child related to him. Likewise, when thy flesh ‘ush’eirecha’ are consumed,¹⁰¹ which means “yourself and your children” who are the flesh closest to you. Thus meat is called sh’eir — He caused ‘sh’eir’ to rain upon them as the dust⁹⁴ — because meat when eaten is absorbed by the eater and becomes part of his flesh. It is possible that this is the meaning of the expression, when thy flesh ‘ush’eirecha’ are consumed,¹⁰¹ meaning: when the original flesh of your body, and the nutriment of flesh which came from the food, will be consumed and will no longer be part of your flesh. Thus a woman in relation to her husband is called sh’eir — just as the Rabbis interpreted:¹⁰² “*except for ‘lish’eiro,’*¹⁰³ sh’eir means his wife;” — the usage of the term being derived from the idea that G-d stated, and he shall cleave unto his wife, and they shall be one flesh.¹⁰⁴ Thus sh’eira here means “the nearness of her flesh;” k’suthah is “the cover of her bed,” just as it is said, *for that is his only ‘k’suthoh’ (covering)… wherein shall he sleep?*¹⁰⁵ and onathah is “her time,” that he come to her at times of love. And even if we say as some commentators do, that the meaning of sh’eir is like “his flesh,” and the expression, *to any ‘sh’eir’ b’saro’*⁹⁶ is like “to any flesh of his flesh,” just as it says, for he is our brother, our flesh¹⁰⁶ — in that case we would still explain ‘sh’eirah'… he shall not diminish as meaning that he shall not diminish from her her flesh; that is, the flesh due to her, namely, the flesh of her husband who with her is one flesh. Thus the meaning of the verse is, that G-d says that if the master takes another wife, he shall not diminish from this one the nearness of her flesh, the cover of her bed, and her time of love, for such is the manner of daughters. And the intention is that the other woman should not be sitting upon a stately bed,¹⁰⁷ and there they shall be one flesh,¹⁰⁴ whilst this one is to him merely like a concubine, with whom he lives only by chance, and upon the ground, just like one comes to a harlot. It is for this reason that Scripture has forbidden him to act in this way. And so did the Sages say:¹⁰⁸ “sh’eirah means the nearness of flesh, that he should not behave to her as is the custom among the Persians, who perform their marital rights in their clothes.” This is a correct interpretation, for such is the style of Scripture always to mention sexual intercourse in clean and brief language. Therefore it mentions these duties by means of allusion: sh’eirah k’sutha v’onatha, referring to the three things which are usual when a man comes together with his wife. Thus the verse is properly explained in accordance with the accepted law, whilst alimentation of one’s wife and provision of her raiment are duties put upon the husband by ordinance of the Rabbis.

footnotes: ⁸⁷ II Samuel 20:5. ⁸⁸ Further, 22:16. ⁸⁹ Deuteronomy 15:13-14. ⁹⁰ Verse 10. ⁹¹ I.e., if he does marry another woman he is more likely to diminish the rights of this one; hence Scripture speaks of the case ‘if’ he take him another wife ⁹⁰ Verse 10. ⁹² Kethuboth 47b. — For the meaning of the term Gemara see in Seder Bo ⁹³ See in Seder Yithro ⁹⁴ Psalms 78:27. ⁹⁵ See Deuteronomy 8:3. ⁹⁶ Leviticus 18:6. Generally translated: “that is near of kin to him.” According to Ramban the literal meaning would be: “the flesh close and near to his flesh.” ⁹⁶ Leviticus 18:6. Generally translated: “that is near of kin to him.” According to Ramban the literal meaning would be: “the flesh close and near to his flesh.” ⁹⁷ Ibid. ⁹⁸ Genesis 29:14. ⁹⁹ Numbers 12:12. “The flesh” here refers to Miriam — Aaron’s and Moses’ sister. ¹⁰⁰ Isaiah 14:22. ¹⁰¹ Proverbs 5:11. ⁹⁴ Psalms 78:27. ¹⁰¹ Proverbs 5:11. ¹⁰² Yebamoth 22b. ¹⁰³ Leviticus 21:2. ¹⁰⁴ Genesis 2:24. ¹⁰⁵ Further, 22:26. ⁹⁶ Leviticus 18:6. Generally translated: “that is near of kin to him.” According to Ramban the literal meaning would be: “the flesh close and near to his flesh.” ¹⁰⁶ Genesis 37:27. ¹⁰⁷ Ezekiel 23:41. ¹⁰⁴ Genesis 2:24. ¹⁰⁸ Kethuboth 48a.

AND IF THESE THREE — designating her to himself as his wife, or to his son, or allowing her to be redeemed — HE DO NOT UNTO HER, then SHALL SHE GO OUT FOR NOTHING, WITHOUT MONEY, as do the menservants mentioned.¹⁰⁹. But if the master do not these three things to her [as explained], then she shall go out as the menservants do. See Ramban above at the end of Verse 8 [“The plain meaning of Scripture in this section etc.”]. To this he now adds that if the master fails to do any of the three ways to ameliorate her condition, then she shall go out free for nothing, as menservants do.

footnotes: ¹⁰⁹ I.e., at the end of six years, or the jubilee year. It is thus in contrast to Verse 7 above: And if a man sell his daughter to be a maidservant, she shall not go out as the menservants do

AND HE THAT SMITETH HIS FATHER, OR HIS MOTHER, SHALL SURELY BE PUT TO DEATH. Our Sages have already taught¹¹⁰ that his death is by strangulation. This is why He placed next to it, And he that stealeth a man, and selleth him,¹¹¹ for he too is punished by the same death. He separated it from the later verse, And he that curseth his father or his mother,¹¹² because his death is by stoning, as it is said concerning him, he hath cursed his father or his mother; his blood shall be upon him,¹¹³ and whenever such an expression [his blood be upon him] is used about someone, his death is by stoning, this being derived from that which is written, They shall stone them with stones; their blood shall be upon them.¹¹⁴, Verse 27. The reason why He was more severe as to the manner of death of the one who curses his mother or father than as to the manner of death of one who smites them,¹¹⁵ is because the sin of cursing is more common, for when the fool gets angry he frets himself and curses by his king¹¹⁶ and father and mother the whole day, and a crime that is frequently committed needs a greater punishment [than one rarely committed]. Or it may be that cursing involves a greater sin, because he uses the Name of G-d,¹¹⁷ and therefore he has to be punished for his sin against his father and mother, and also for taking G-d’s Name in transgression and sin. Now the Gaon Rav Saadia¹¹⁸, Note 229. said, that the reason why He placed the matter of stealing a human being between that of smiting one’s parents and cursing them, is because most people are kidnapped when they are young, and they grow up in a strange place unaware of who their parents are, and thus they may come to smite them or to curse them [not knowing that they are their parents]; therefore it is fitting that the thief too be punished by death as they are, since he is responsible for the punishment that is visited upon the child [who smites or curses either of his parents, and for that reason the verse dealing with the thief’s punishment is mentioned between those dealing with smiting one’s parents and cursing them].

footnotes: ¹¹⁰ Sanhedrin 84b. ¹¹¹ Verse 16. ¹¹² Verse 17. ¹¹³ Leviticus 20:9. ¹¹⁴ Ibid. ¹¹⁵ In the order of severity stoning is considered the most stringent of the four deaths that the court had power to inflict, and strangulation the least severe. Ramban’s question is thus pertinent: why the most severe punishment for the curser, and the least severe one for one who smites? ¹¹⁶ Isaiah 8:21. ¹¹⁷ Shebuoth 36a. Also in the Mechilta here: “One who curses his father or his mother is not liable to the death penalty unless he curses them by using the Divine Name.” Needless to say cursing is strongly forbidden by itself, even without using the Divine Name. ¹¹⁸ Mentioned here in Ibn Ezra, Verse 16. — On Rav Saadia, see in Seder Va’eira

AND HE THAT STEALETH A MAN, AND SELLETH HIM, AND HE BE FOUND IN HIS HAND — “previously, before the sale.” This is Rashi’s language. But I have not understood it.¹¹⁹, it would appear that the fact that the witnesses saw him in his possession constitutes their proof that the holder stole him. On this, Ramban asked: could you possibly think that the thief be subject to death without the witnesses having seen the actual theft and the sale? Their having seen him in the thief’s possession is in fact no proof at all that he had stolen him (Nimukei Shmuel). If Rashi means that witnesses must have seen him [the stolen person] in the thief’s possession before he had sold him — could it even enter your mind that the thief be subject to the death penalty without witnesses having seen him stealing and also seeing him selling! It would therefore have been sufficient if Scripture were to say: “and he that stealeth a man and selleth him”. Further, his being found in the thief’s possession is no real proof that he stole him! Rather, this verse is the source for that which we have been taught in a Mishnah:¹²⁰ “He that steals a person is not liable to the punishment unless he brings him into his own possession,” and in a Beraitha the Rabbis have said:¹²⁰ “If he stole him but did not sell him, or if he sold him but he is still in his [the thief’s], possession, he is free [from the death penalty].” The meaning of this is to teach us that the law applying to the thief of a human being is [in one respect] similar to that of thieves of other, i.e., monetary, matters; namely, that if a thief killed or sold [an ox or a sheep] within the domain of the owner, he is free [from paying five oxen for an ox and four sheeps for a sheep],¹²¹ but if he lifted them up [thereby acquiring possession of them], or removed them from the domain of the owner, he is liable to pay. Similarly, this thief of a human being must first have brought the stolen person into his own domain [in order to be liable to death]. Likewise if he lifted the lad upon his shoulder, and sold him to another person, he is liable to the death penalty, because this too is called if he be found in his hand, since it is not logical that a man’s ground should have a greater power of taking possession of a thing for the owner, than his own hand has. In a similar way, that which the Rabbis said [in the Beraitha mentioned above]: “or if he sold him but he is still in his [the thief’s] possession etc.,” means that the buyer did not remove him at all from the thief’s domain, even though he paid him the money, and since he did not remove him from there, the thief is free [from the death penalty]. Now I do not know whether this is to say that [in order to make the thief of a human being liable to the death penalty] the buyer must perform a formal act of acquisition, as is the law in other transactions, that the buyer does not take ownership of the article until he draws it from the domain of the seller into a simta, [an alley adjoining an open place] or until he lifts it [even within the domain of the seller] — or it may be that it is a special Scriptural decree in the case of the sale of a stolen human being, that even if the sale has been finalized between them, and the buyer has taken ownership from the seller by lifting him or by drawing him along in ground which belongs to both of them, [in which case usually the act of drawing the purchased article is a valid act of acquisition even if not done in a simta], that the thief is nonetheless free from the death penalty until the stolen person goes out from his domain into the domain of the buyer. And so indeed it would appear to be [as the latter exposition]. Now Rashi in his commentaries there in the Gemara¹²⁰ explained [the phrase of the Beraitha]: “if he sold him but he is still in his possession” as meaning “if he is still in the stolen person’s domain,¹²². in which case the thief is free from punishment because there has been no real theft at all.” But if so, nothing new has been established here which is unlike the ordinary law of theft in monetary matters!¹²³ However, it may be, the words of the verse [to be interpreted properly, must be transposed as follows]: “and he that stealeth a man, and he be found in his hand, and he selleth him, he shall surely be put to death.” But it is still possible that the verse may be explained properly in the order it is written in. Thus: And he that stealeth a man, and selleth him, and he be found in the hand of the buyer [he — the thief — shall surely be put to death]; for if he stole a human being and brought him to his house, and then he brought the buyer there and sold him without the buyer taking him out from there, the thief is not liable, because the sale has not been completed between them, or even if the sale has been completed, he is still free of the death penalty, as I have written above.

footnotes: ¹¹⁹ Ramban argues that since Rashi made his comment upon the phrase: and he be found in his hand ¹²⁰ Sanhedrin 85b. ¹²⁰ Sanhedrin 85b. ¹²¹ Further, Verse 37. ¹²⁰ Sanhedrin 85b. ¹²² Not as we have explained it heretofore, according to Ramban, that the reference is to the thief’s domain ¹²³ But according to Ramban, as explained above, there is a new law established here: even if the thief brought the stolen person to his domain, and the buyer came there and the sale was completely finalized, [by the buyer lifting him, or drawing him into ground which belongs to both], the thief is nevertheless free from the death penalty as long as the buyer did not remove him from the seller’s domain. In the case of theft of an ox or sheep under such circumstances, the thief would be liable to pay five oxen for an ox and four sheep for a sheep.

WITH A STONE OR ‘B’EGROF’ (WITH HIS FIST). Judging from certain expressions of the Rabbis, egrof is the hand closed tightly, with the fingers gathered into the palm for the purpose of striking someone with it. Thus they speak of ba’alei egrofin [literally: “men of fists,” or men of power];¹²⁴ “egrofo (the fist) of Ben Abtiach.”¹²⁵ Similarly ‘b’egrof’ of wickedness¹²⁶ means the hand of wickedness that strikes. Scripture thus mentioned two kinds of hitting — the hard one, with a stone, and the lighter one, with the fist, which in most cases does not cause death — in order to declare that in both cases an estimate [of the power of the stone or the fist with which he struck him] is needed, and the assailant is meanwhile imprisoned. If the assailed person dies, such as where he struck him a mortal blow, he is a murderer; he shall surely be put to death,¹²⁷ but if he does not die, the assailant has to pay him for the loss of his labor and for the cost of the healing. In the Mechilta [we find the following text]:¹²⁸ “Rabbi Nathan says: He has likened the stone to the fist and the fist to the stone. Just as the stone can cause death, so also the blow of the fist must be such that it is capable of causing death. And just as the fist is something that can be identified [and measured for the power of its blow], so also the stone must be such as can be identified. But if the stone with which he struck him became mixed up with other stones, the assailant is free.” This means if the stone became mixed up with other stones, they [e.i., the judges] estimate the lightest one and if it is incapable of causing death, they free the assailant. Other scholars¹²⁹). have said that the word egrof means “a clod of earth,” the term being derived from the expression: the grains shrivel under ‘megr’fotheihem’ (their clods of earth),¹³⁰ and the letter alef [in the word egrof is redundant], as is the alef in the word ezro’a [“arm,” where the word is really zro’a]. And this is the opinion of Onkelos who translated b’egrof — b’churmeiza (a piece of white stone or glazed tile). He mentioned these things also in order to tell us that the assailant who hits him with a clod of earth is also liable to be put to death, if he struck him on a sensitive spot where it is capable of causing death. This is to distinguish the law of the sword from the stone and egrof, for no estimate [of a sword or weapon] needs to be taken [since even a minute piece of metal — such as a needle — can also cause death], as the Sages have mentioned.¹³¹

footnotes: ¹²⁴ Kiddushin 76b. ¹²⁵ Keilim 17:12. A giant who lived in the time of the Second Sanctuary. ¹²⁶ Isaiah 58:4. ¹²⁷ Numbers 35:16. ¹²⁸ Mechilta here on the Verse. ¹²⁹ Ibn Ezra and R’dak (in Sefer Hashorashim, root goraf ¹³⁰ Joel 1:17. ¹³¹ Sanhedrin 76b.

IF HE RISE AGAIN, AND WALKS ABROAD ‘AL MISH’ANTO’ — “in his former healthy state and vigor.” This is Rashi’s language. And Rabbi ibn Ezra said that the reason why this word [which means literally: “support”] is used, is to tell us that he must not be dependant upon others for the ability to walk, like an invalid, but must walk by himself;¹³² is “his physical strength;” according to Ibn Ezra, it is “his leaning” or “support.” Ramban will proceed to explain it in its literal sense — “on his staff.” Almost all translations follow Ramban’s interpretation. only then shall he that smote him be quit from prison. In my opinion, mish’anto is to be understood in its literal sense, [a staff], just as in the verses: *every man with ‘mish’anto’ (his staff) in his hand for old age;*¹³³ ‘mish’eneth’ (the staff) of this bruised reed.¹³⁴ Scripture is thus stating that if the injured person’s health improves sufficiently to enable him to go out walking as he wishes in the streets and in the broad ways¹³⁵ with his staff, like those healed from some prolonged disabling injury, then shall he that smote him be quit; and it further teaches us that even if the injured man is careless later about his health and dies after that in his weakness, the assailant is free from the death penalty. Scripture says and he walketh abroad because it speaks of the customary way of life, for injured men who were laid up in bed do not go out walking again until their wounds have healed and they are out of danger, this being the sense of the phrase, and he walketh abroad, because if he just gets up and walks in his house on his staff, and then dies, the assailant is not free [from the death penalty]. In the words of the Mechilta:¹³⁶ “If he rise again and walketh. I might think this means within the house; Scripture therefore says, abroad. But from the word abroad I might think that even if he was wasting away [the assailant is still free from punishment]; Scripture therefore says, if he rise again.” This explanation too is very correct, that Scripture should be saying that if the injured man gets up completely from his bed and goes steadily outside — without having to go back to his bed when returning from outside, as is the way of those who continue to waste away — even though he is weak and has to lean upon a staff, the assailant shall be let off. In general all this is to be interpreted as being figurative, language expressing people’s practical conduct, and the basic rule is that he must have been assessed as being capable of recovery. This is why Onkelos translated al mish’anto: al boryeih (in his healthy state).

footnotes: ¹³² Thus according to Rashi mish’anto ¹³³ Zechariah 8:4. ¹³⁴ II Kings 18:21. ¹³⁵ Song of Songs 3:2. ¹³⁶ Mechilta here on the Verse.

Scripture states, only he shall pay for the loss of his time, and shall cause him to be thoroughly healed, but it does not say, “he shall pay for the loss of his time and his medical care.” in order to tell us that he must pay the money for the doctors to heal him, and the injured person cannot demand that he should give him the compensation and he will do other things with it. Instead, the assailant must heal him under all circumstances.

IF A MAN SMITE HIS BONDMAN. Our Sages have already perforce derived from the expression, for he is his money,¹³⁷ that this verse speaks of a Canaanite bondman, and the plain meaning of Scripture is indeed as they say, for his countryman, a Hebrew man or woman, is not called plain eved or amah without any further qualifications.¹³⁸ Scripture states ‘basheivet’ [with a patach under the beth, which indicates the definite article, thus meaning] “with the rod”: [And if a man smite his bondman, or his bondwoman, with the rod], because it is the custom of a ruler or master to keep in his hand a rod, and G-d therefore warned him that even if it be a rod of correction¹³⁹ and not a wooden cane, he should be careful with it and should not use it to hit even a Ganaanite bondman with a persecution that none restrained.¹⁴⁰ This is the purport of the expression, and he die under his hand, meaning that he kept striking him until he died. It was not necessary for Scripture to state the punishment which he is liable to, but it just stated that he is not to go free merely because the bondman is his money, but he shall surely be punished, as is the punishment of anyone who strikes another person so that he dies, where Scripture has said, he shall surely be put to death.¹⁴¹ In line with the plain meaning of Scripture the intention of: Notwithstanding, if a day or two ‘ya’amod’,¹³⁷ [generally translated “he continues”], is that the bondman literally gets up “and stands” on his feet. This is why it was necessary for Scripture to say a day or two, the meaning thereof being that if on that day or on the following day the bondman will stand up on his feet, he [i.e., the master] shall not be punished. And the verse is to be understood as if it said: “notwithstanding, [if he stands up] ‘bayom’ or ‘bayomayim’ (in a day or in two) or ‘l’yom’ or ‘l’yomayim’ (to a day or to two).¹⁴² [literally: “a day or two”]. This fits in with the translation of ya’amod as “he continues,” thus: if he continues [living] a day or two. Ramban who interprets ya’amod in its literal sense — “he stands up” — therefore concludes that the sense of the verse is: “notwithstanding, if he stands up in a day or in two etc.” The opinion of the Rabbis mentioned further on will explain sufficiently why the Torah did write here yom o yomayim. There are many such cases [where the prefix beth or lamed is missing as it is assumed in the meaning of the word]. Thus, at first He had said, and he die under his hand, which might be taken to have meant that the bondman died immediately at the time he struck him; therefore He referred back and explained that if on the day he struck him he stood up on his feet, or even if he could not stand at all on that day, but did so on the next day, the master is free from punishment. But if he did not stand up at all, the master is liable to punishment, even though the bondman only died on the second day, for that too is considered as if he died under his hand. It did not mention a case where he stood up on the third day, for if the bondman lived three days, the master is free from the death penalty, since this is no longer considered a case of he die under his hand. In the opinion of our Rabbis¹³⁶ Scripture mentioned yom o yomayim [“a day or two,” and not bayom o bayomayim, “in a day or in two”], in order to teach us that [for the master to go free] the bondman must have survived twenty-four hours, and the meaning of the expression used is: “a complete day [consisting, as it does, of twenty-four hours]; or two days, neither of which consists of a complete day, [but instead the period of twenty-four hours is made up of the parts of two separate days].” Had it said just “a day,” the bondman would have had to continue living for a night first and then the following day, as is the “day” of the Torah mentioned at the creation¹⁴³ (Genesis 1:5). and in connection with the Sabbaths and festivals; [but now that it said, a day or two it means any period of twenty-four hours, as explained above]. The word ya’amod [in accordance with the opinion of the Rabbis] then means that “he continues to live.” Similarly, that they may ‘ya’amdu’ many days,¹⁴⁴ means “continue to exist.” And this is the correct and true interpretation of the verse.

footnotes: ¹³⁷ Verse 21. ¹³⁸ See also Ramban above Verse 7, and Note 67. ¹³⁹ Proverbs 22:15. ¹⁴⁰ Isaiah 14:6. ¹⁴¹ Above, Verse 12. ¹³⁷ Verse 21. ¹⁴² The verse has it: yom o yomayim ¹³⁶ Mechilta here on the Verse. ¹⁴³ And there was evening and there was morning, one day ¹⁴⁴ Jeremiah 32:14.

AND IF MEN STRIVE TOGETHER, AND HURT A WOMAN WITH CHILD, SO THAT HER FRUIT DEPART, AND YET NO HARM FOLLOW, HE SHALL BE SURELY FINED, ‘KA’ASHER’ THE WOMAN’S HUSBAND SHALL LAY UPON HIM. “This means: ‘when’¹⁴⁵ in the word ka’asher not in the sense of “as,” indicating degree or extent (“according as”), but in the sense of “when” — when the woman’s husband takes him to court. the husband will summon him before the court in order that they put a fine on him for it.” Thus far Rashi’s language. And it is correct [to interpret here the letter kaf in the word ka’asher as meaning “when”, and not “as”]. A similar case is the expression, ‘ka’asher’ (when) it shall be well with thee,¹⁴⁶ and there are many other such cases. And the intention of the verse is that the assailant has to pay compensation for the miscarriage when the husband takes him to court, not when the woman does so, as the compensation is not hers. Onkelos, however, translated: “according to the amount [that the woman’s husband] shall lay upon him.” Rabbi Abraham ibn Ezra explained the verse as follows: according as the woman’s husband shall lay upon him, or¹⁴⁷, which is generally translated “and he shall pay” — as the judges determine, Ibn Ezra interprets to mean “or he shall pay,” and the purport thereof is as explained in the text. he shall pay as the judges determine, as if to say that the assailant should come to agreement with the husband on a fixed sum, or he should pay compensation as the court will assess him. This is not correct, for what reason is there to mention this?¹⁴⁸ In my opinion, since the damage done is one that is not discernible in the unborn children themselves — for who could know their fortune — therefore Scripture said, that although he cannot be made to pay a precise monetary compensation, he should nonetheless be fined as a sort of penalty in the form of a sum of money¹⁴⁹ which others [i.e., the judges] shall impose upon him. A similar usage [of the term onesh — punishment] is also found in these verses: *and he put the land to ‘onesh’ (a fine);*¹⁵⁰ they drink the wine of them that have been ‘anushim’ (fined).¹⁵¹ Scripture is thus stating that the punishment be entirely as the woman’s husband shall lay upon him, because he desires his children and they are important to him, but he [i.e., the husband] should fix the sum through the judges, in order that he should not impose upon him an exorbitant sum. In the words of the Mechilta:¹³⁶, “According as the woman’s husband shall lay upon him. I might think this to mean, whatever he pleases; Scripture therefore says, and he shall pay as the ‘pelilim’ determine, and pelilim always means judges.”

footnotes: ¹⁴⁵ Rashi is thus explaining the letter kaf ¹⁴⁶ Genesis 40:14. ¹⁴⁷ The Hebrew word v’nathan ¹⁴⁸ For surely if the parties voluntarily agree on a sum there is no necessity for them to go to court, and if they fail to agree on a sum it is self-understood that the court will have to assess the fine. ¹⁴⁹ See my Hebrew commentary p. 424 for further elucidation of this phrase of Ramban “a sort of penalty.” ¹⁵⁰ II Kings 23:33. ¹⁵¹ Amos 2:8. ¹³⁶ Mechilta here on the Verse.

EYE ‘TACHATH’ (FOR) EYE. It is known in the tradition of our Rabbis¹³⁶ that this means monetary compensation. Such usage [of the term tachath to indicate] monetary compensation is found in the verse: And he that smiteth a beast mortally shall pay for it; life ‘tachath’ life,¹⁵² [in which case tachath surely indicates monetary compensation]. Rabbi Abraham ibn Ezra commented that Scripture uses such a term to indicate that he really is deserving of such a punishment, [that his eye be taken from him], if he does not give his ransom. For Scripture has forbidden us to take ransom for the life of a murderer, that is guilty of death,¹⁵³ but we may take ransom from a wicked person who cut off any of the limbs of another person. Therefore we are never to cut off that limb from him, but rather he is to pay monetary compensation, and if he has no money to pay, it lies as a debt on him until he acquires the means to pay, and then he is redeemed. Proof for what the Sages have said [that eye ‘tachath’ eye means he pays him the value of his eye], is in what He has said above [with reference to one who injures another person], only he shall pay for the loss of his time, and shall cause him to be thoroughly healed.¹⁵⁴ But if we were to do to the assailant exactly as he has done to the injured man, why does he have to pay after that? He himself is in need of amends for the loss of his own time and costs of his own healing! And it would not be valid to argue that the assailant is to give the injured man [the difference in cost between a slow recovery and] a fast recovery,¹⁵⁵ really means that the eye of the assailant be removed, and Verse 19 that deals with his obligation to pay for the loss of time and cost of healing of the injured, applies to that difference as explained above. — This argument is actually mentioned in the Talmud (Baba Kamma 84a.). But, argues Ramban, it is not the plain meaning of Scripture, for the simple meaning of Verse 19 is that it speaks of the assailant having to pay for the whole loss of time and costs of healing. Therefore it constitutes a proof that eye ‘tachath’ eye means monetary compensation, as explained above. since this is not the plain meaning of Scripture. Rather, Scripture speaks of all people, and even if his recovery [i.e., the assailant’s] were to be fast, we would have long taken our punishment of him, in doing to him exactly as he did!¹⁵⁶ cannot be meant literally, but means the monetary value of the eye. If we explain the verses according to the literal interpretation of Scripture, there is no escape from this question,¹⁵⁷, and in the other it speaks of the assailant’s duty to pay for the loss of his time and costs of healing, and the question appears why he should pay this additional payment when we have already punished him. There is no escape from this question except by saying that etc. [see text]. Ramban will finally allude to why he mentions all this: it is to show what sophistry we have to display if we seek to follow only the plain meaning of Scripture! We thus have no recourse but to Tradition. unless they¹⁵⁸). See Vol. I, p. 154. will say that if someone maims his neighbor so that he deprives him permanently of some bodily member, such as an eye, hand, or foot, or causes a burn which leaves a permanent mark, then we are to do likewise to the assailant’s body, this being the case of the verse which says, As he hath caused a blemish in a man, so shall it be done to him,¹⁵⁹ and in that case there is no monetary compensation paid for loss of time and cost of healing. But if he hits him with a stone or with his fist on his clothes, and he is laid up in bed but then is completely healed without any crippling effect remaining upon his body, in that case He said, only he shall pay for the loss of his time, and shall cause him to be thoroughly healed.¹⁵⁴ All the injuries specified in the verse, burning for burning, wound for wound, stripe for stripe,¹⁶⁰ are included, according to the plain meaning of Scripture, in this preceding general principle, for a wound and stripe may be completely healed. And as for that which Scripture states there, And if a man cause a blemish in his neighbor, as he hath done so shall it be done to him,¹⁶¹ it too was meant to include all injuries, but He did not mention there at length the cases of wounding, striping, and burning [as He did here]. He used the term mum (blemish), for every wound causes at least a temporary blemish. Thus even if it is of the kind which heals, it is still called “a blemish,” just as we say: “a passing blemish,”¹⁶² and the Torah calls scabbed, or scurvy, or hath his stones crushed¹⁶³ “a blemish” although they are temporary and can be healed,¹⁶⁴ and it is further written, youths in whom there was no blemish.¹⁶⁵ The general principle everywhere is that the Tradition is always true.¹⁶⁶

footnotes: ¹³⁶ Mechilta here on the Verse. ¹⁵² Leviticus 24:18. ¹⁵³ Numbers 35:31. ¹⁵⁴ Above, Verse 19. ¹⁵⁵ Thus, if the assailant had a fast recovery and the injured man a slower recovery, the assailant is to pay him the difference of expenses incurred in the loss of time and costs of healing. In that case, one could still argue that eye ‘tachath’ eye ¹⁵⁶ And why should he be burdened with the additional cost representing the difference in the recoveries [as explained above], after we have already taken our punishment of him by doing to him as he had done to others? Thus it is obvious that Verse 19 speaks of all men alike, and eye ‘tachath’ eye ¹⁵⁷ I.e., an apparent difficulty in the verses [if we interpret them in their plain meaning]: that in one verse it says eye for an eye ¹⁵⁸ I.e., “those who pursue the plain meaning of Scripture” (the rodfei ha’pshat ¹⁵⁹ Leviticus 24:20. ¹⁵⁴ Above, Verse 19. ¹⁶⁰ Verse 25. ¹⁶¹ Leviticus 24:19. ¹⁶² Bechoroth 37b. ¹⁶³ Leviticus 21:20. ¹⁶⁴ See my Hebrew commentary, p. 425. ¹⁶⁵ Daniel 1:3. The intention there is obviously that these youths who were to serve in the king’s palace were free even of any passing blemish. ¹⁶⁶ See above, Note 157.

AND ITS OWNER SHALL BE PUT TO DEATH. Our Rabbis have received by Tradition¹⁶⁷ that this death means by the hand of Heaven. Similar cases are these verses: *and the common man that draweth nigh shall be put to death;*¹⁶⁸ and they die therein, if they profane it.¹⁶⁹ I have noticed that where the Torah speaks of those liable to be put to death by the court, it does not mention just yumoth (he shall be put to death), but always says, moth yumoth (he shall surely be put to death). Do not object to this rule from the verse, and he that killeth a man ‘yumoth’ (shall be put to death),¹⁷⁰! or from the verse about the Sabbath,¹⁷¹ (further 35:2), and his punishment is death by the court! or a prophet who misleads,¹⁷² (Deuteronomy 13:6), and there too his punishment is by the court (Sanhedrin 84 a). for in each of these cases He has already clearly explained elsewhere about them [that they are liable to death by the court, by using the phrase: moth yumoth].¹⁷³. Now I do not know the reason for Onkelos’ rendering yumoth as yithk’teil [“he shall be killed”, which indicates that his death is to be by the court, instead of by the hand of Heaven]. Perhaps his intention is to state that the owner, [who had been previously warned that his ox had gored three times, but still did not guard it, so that it went out and killed a man or woman], deserves to be put to death, but is instead made liable to the payment of a ransom. Or perhaps Onkelos means to explain that that which Scripture states, and its owner also shall be put to death means that the owner will perish in a similar manner to that by which the gored person was killed, for *his day shall come to die, or he shall go down into battle, and be swept away;*¹⁷⁴ the Eternal will not hold him guiltless.¹⁷⁵ Thus Onkelos wanted to teach us that the owner of the ox is liable, according to the view of Heaven, to die by the hand of a killer, and not by a natural death, something like it is said, and I will kill you with the sword.¹⁷⁶ In the verse, and the common man that draweth nigh shall be put to death,¹⁶⁸ Onkelos also translated yumoth as yithk’teil [“he shall be killed,” indicating that his death is to be by the court], because he agrees with the opinion of Rabbi Akiba who said that a non-priest who performed the Divine service in the Sanctuary is put to death by strangulation.¹⁷⁷

footnotes: ¹⁶⁷ Mechilta here on the Verse. ¹⁶⁸ Numbers 18:7. Punishment for a non-priest who performs the Divine service in the Sanctuary is death by the hand of Heaven (Sanhedrin 83 a). ¹⁶⁹ Leviticus 22:9. This is with reference to an unclean priest who ate clean heave-offering [which is forbidden to him as long as he remains in his state of uncleanness], and the punishment is death by the hand of Heaven (Sanhedrin 83 a). ¹⁷⁰ Leviticus 24:21. In this case his punishment is death by the court, and yet it says only yumoth ¹⁷¹ Of the Sabbath it is said, Whosoever doeth any work therein ‘yumoth’ (shall be put to death) ¹⁷² And that prophet… ‘yumoth’ (shall be put to death) ¹⁷³ In the case of smiting a man — see above Verse 12; for the Sabbath, see further, 31:14. For a prophet who misleads, see Deuteronomy 13:10: ki harog tahargenu (for thou shall surely kill him) ¹⁷⁴ I Samuel 26:10. ¹⁷⁵ Above, 20:7. ¹⁷⁶ Further, 22:23. ¹⁶⁸ Numbers 18:7. Punishment for a non-priest who performs the Divine service in the Sanctuary is death by the hand of Heaven (Sanhedrin 83 a). ¹⁷⁷ Sanhedrin 84a. The Sages, however, are of the opinion that his death is by the hand of Heaven.

IF THERE BE LAID ON HIM A RANSOM, THEN HE SHALL GIVE FOR THE REDEMPTION OF HIS LIFE WHATSOEVER IS LAID UPON HIM. Since the redemption is a form of atonement¹⁷⁸ as are the offerings, and if the owner does not desire it we cannot force him to come before the court to impose the ransom on him, and even if the court ordered him to pay it, we cannot seize his goods as security, therefore He said: “if.”

footnotes: ¹⁷⁸ “An atonement for the owner whose ox killed a man” (Rashi Makkoth 2 b).

O’ (OR) HE HAVE GORED A SON, OR HAVE GORED A DAUGHTER ACCORDING TO THIS JUDGMENT SHALL IT BE DONE UNTO HIM. Scripture uses the word o (‘or’ he have gored a son), because it adds to a phrase mentioned above, the meaning of the whole phrase thus being: “and he hath put to death a man or a woman,¹⁷⁹ or he have gored a son, or have gored a daughter, one ordinance shall be for them.” Some scholars¹⁸⁰ say that the word o comes in the place of im (if). Similarly: *‘o’ (if) it be the carcass of an unclean beast;*¹⁸¹ *‘o’ (if) I had dealt falsely against mine own life;*¹⁸² ‘o’ (if) it be known that the ox was wont to gore.¹⁸³ There are many such cases, in the opinion of these scholars.¹⁸⁰ But all these proofs are false witnesses; you will understand them all in their context. According to our Rabbis,¹⁸⁴ Scripture had to detail the ordinance [in the case of an ox goring] minors, because it found it necessary to say above, And if an ox gore a man or a woman,¹⁸⁵ — in order to teach us that in all laws of the Torah concerning damages G-d has treated woman equally to man — thus I might have thought that one is only liable in the case of a grown man or woman; therefore Scripture says, or he have gored a son, to make him liable for the death of minors as for that of adults. The same method was followed by Scripture in the verse, And he that smiteth any man mortally shall surely be put to death,¹⁸⁶ as Rashi explained there.¹⁸⁷ (above Verse 12), I know only about a man. How do I know that the same applies to a woman and to a minor? Scripture therefore says, kol nefesh adam (and he that smiteth ‘any man’) — [literally: ‘the soul of any human being’]” (Rashi, Leviticus 24:17). In line with the plain meaning of Scripture, [the ordinance concerning an ox goring minors is stated] because an ox that kills a grown-up person is extremely vicious, as a bear robbed of her cubs¹⁸⁸ in the wilderness, thus if warning hath been given to its owner, and he hath not kept it in,¹⁷⁹ he has committed a grave transgression, and deserves to be liable to death or to pay a ransom [for the redemption of his life]; but an ox that kills minors is not so vicious, for most oxen are not afraid of them, and one might therefore think that their owners are not liable [to the same punishment], therefore Scripture states that according to this judgment shall it be done unto him.

footnotes: ¹⁷⁹ Above, Verse 29. ¹⁸⁰ Rashi in Leviticus 4:23, and R’dak in Sefer Hashorashim, root o. ¹⁸¹ Leviticus 5:2. ¹⁸² II Samuel 18:13. ¹⁸³ Further, Verse 36. ¹⁸⁰ Rashi in Leviticus 4:23, and R’dak in Sefer Hashorashim, root o. ¹⁸⁴ Baba Kamma 44a. ¹⁸⁵ Verse 28. ¹⁸⁶ Leviticus 24:17. ¹⁸⁷ “Because it is said, He that smiteth a man, so that he dieth, shall surely be put to death ¹⁸⁸ II Samuel 17:8. ¹⁷⁹ Above, Verse 29.

AND THE DEAD BEAST SHALL BELONG TO HIM — “to the one who suffered the damage. We make an estimation of the value of the carcass and he takes it in part payment and the one who caused the damage, [the owner of the pit], pays him in addition as much as makes up the value of his damage.” This is Rashi’s language. But he did not explain the law sufficiently. For there is no need for Scripture to tell us concerning this carcass that the one who suffered the damage must take it in part payment, when he brings it before the court to collect his damage; for even if the one who caused the damage had other carcasses that were carrion, or flesh that was treifah¹⁸⁹ in his possession, he can give it to him in part payment, it being already established¹⁹⁰ that restitution for damages need not be in money, but may “include anything of value, even bran.” Rather, the meaning of the verse is to state that the carcass belongs to the one who suffered the damage and is considered his property; therefore if its value decreased after the damage was caused, or it was stolen, the one who caused the damage, [the owner of the pit], pays only the loss in value caused by the death of the animal. Thus if the ox that was killed was worth when alive one hundred zuzim, and upon its death became worth fifty, the one who caused the damage is liable to pay only fifty zuzim, and the other attends to his carcass [removing it from the pit], and keeps it for himself.¹⁹¹ This law applies to all damages, and it is what the Sages call: “the loss in the carcass’ value,” and is explained in the Gemara.¹⁹², 34a. [See in my translation of Hameniach, Shulsinger Bros., New York, 5729, p. 65.]

footnotes: ¹⁸⁹ Any animal suffering from a serious organic disease, whose meat is forbidden even if ritually slaughtered. ¹⁹⁰ Baba Kamma 7a. ¹⁹¹ He may use its hide for leather, and its flesh to feed the animals, or he may sell it for such uses. ¹⁹² Ibid.

OR IF IT BE KNOWN THAT THE OX WAS WONT TO GORE IN TIME PAST, AND ITS OWNER HATH NOT KEPT IT IN, HE SHALL SURELY PAY AN OX FOR AN OX. It is known that if a Tam¹⁹³ is an animal which has not injured, or killed [an animal] more than three times and whose owner has not been warned that it is dangerous and must be guarded. For whatever damages a Tam does, its owner pays only half the loss. The Tam is distinguished from a Muad, an animal which has killed or injured at least four times, and whose owner has been warned that it is dangerous and must be guarded. For whatever damage it does, the owner must pay in full. too is properly guarded by its owner, but through an accident it so happened that it went out and caused damage, the owner is certainly not liable.¹⁹⁴, (see Note above) since the same law applies to a Tam as well. Ramban proceeds to remove this difficulty. Thus the reason why He states only with reference to a Muad,¹⁹³ is an animal which has not injured, or killed [an animal] more than three times and whose owner has not been warned that it is dangerous and must be guarded. For whatever damages a Tam does, its owner pays only half the loss. The Tam is distinguished from a Muad, an animal which has killed or injured at least four times, and whose owner has been warned that it is dangerous and must be guarded. For whatever damage it does, the owner must pay in full. and its owner hath not kept it in, [when the same principle would apply to a Tam as well] is, according to that Sage in the Talmud¹⁹⁵ who says that a Muad needs better guarding than a Tam, as follows: Scripture states that if the ox was wont to gore and warning had been given to its owner, and he hath not kept it in and guarded it better in view of its dangerous nature, so that it went out and caused damage, the owner must pay the full damage. According to the opinion of that Sage¹⁹⁶). who holds that the degree of guarding necessary for both Tam and Muad¹⁹³ is an animal which has not injured, or killed [an animal] more than three times and whose owner has not been warned that it is dangerous and must be guarded. For whatever damages a Tam does, its owner pays only half the loss. The Tam is distinguished from a Muad, an animal which has killed or injured at least four times, and whose owner has been warned that it is dangerous and must be guarded. For whatever damage it does, the owner must pay in full. is alike, the meaning of the verse is as follows: If it be known to the owner that the ox was wont to gore and now too [i.e., at the fourth time] he hath not kept it in, he is liable to pay the full damage on account of his grave negligence.

footnotes: ¹⁹³ A Tam ¹⁹⁴ But if so, the question arises why the Torah mentions the guarding of the animal only in the case of the Muad ¹⁹³ A Tam ¹⁹⁵ Baba Kamma 45b. See in my Hebrew commentary p. 426, that the reference is to Rabbi Meir. ¹⁹⁶ This is the opinion of Rabbi Eliezer ben Yaakov (ibid. ¹⁹³ A Tam

AND THE DEAD BEAST SHALL BELONG TO HIM — “to the one who suffered the damage, and the one who caused the damage adds to it until he completes the amount, so that the one who was damaged will have been paid for his entire loss.” This is Rashi’s language, and is in accordance with the teaching of our Rabbis.¹⁹⁷, 10b. And if so, it is proper that we explain the verse as follows: he shall surely pay ox for ox “with” the dead beast which shall, belong to him. Similarly, and Joseph was in Egypt,¹⁹⁸ means: “with” Joseph who was in Egypt [they were seventy souls]. Likewise, *I cannot endure iniquity ‘va’atzarah’*¹⁹⁹ [literally: “and the solemn assembly”] means with the solemn assembly, similar to that which He said, I hate robbery ‘b’olah’ — “with” a burnt-offering.²⁰⁰, 61:8. According to the simple meaning of Scripture it is possible to explain the expression, and the dead shall belong to him — to the one who caused the damage, the verse thus stating: he shall surely pay ox for ox, but he may keep the carcass, so that in making monetary compensation he can turn it over to the one who suffered the damage as part payment. Thus according to both interpretations the law is alike — the owner of the dead animal attends to the carcass, and its value is determined as at the time of its death,²⁰¹ to be taken by him as part payment, according to the words of our Rabbis.²⁰¹

footnotes: ¹⁹⁷ Ibid. ¹⁹⁸ Above, 1:5. ¹⁹⁹ Isaiah 1:13. ²⁰⁰ Ibid. ²⁰¹ If its value decreases after the time of its death, he must bear that loss alone (Baba Kamma 34 b). ²⁰¹ If its value decreases after the time of its death, he must bear that loss alone (Baba Kamma 34 b).