MISHPATIM (Exodus, 21:1-24:18) — “Oh Say, Can you Sue?!”

Three times a day, we pray, “Restore our Judges, as in earliest times… Rule over us, You, G-d, alone, with kindness and compassion, and justify us through judgment…”

What are we complaining about?  Don’t we in America have a fair and just judicial system?

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Jack and Jill lived up the hill.

Each of these two neighbors owned an ox.  Jill’s ox was out in the field one day, calmly grazing on grass.  Suddenly, out of nowhere, Jack’s ox charged, ramming his horns into his unsuspecting neighbor.  To Jill’s utter shock, her ox lay there in the field, and bled to death.

Jill was outraged!  She had spent $1000 to buy that ox.  She had hoped to breed it and/or butcher it.  Now her thousand-dollar investment had become a hundred dollars worth of dog food (see “The Dog Days of Egypt”) and shoe leather.

Jill hired Johnnie Cochran, who told the jury how Jill’s life had been shattered by the loss of her livelihood.  By the time the trial was over, Jack was required to sell his house in order to stay out of bankruptcy.  The court awarded Jill damages for the loss of the animal, plus two million dollars for the mental anguish of seeing her ox shishkabobbed.  Jack was ruined, and Jill bought a condo in Boca.

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Now, let’s change the scenario a bit.

Jack and Jill are now Yaakov and Yocheved.  Instead of going to court, Yocheved, a religious woman, went to her local Beit Din, a rabbinic tribunal, for justice.

The facts were presented to the panel of rabbis.  Yaakov’s ox, in a completely unprovoked attack, had gored Yocheved’s ox.  Yocheved demanded justice.  She was dismayed by the response.

The court acknowledged that her thousand-dollar ox was now worth a hundred.  They also noted that this was Yaakov’s ox’s first offense.  Yaakov’s $1000 ox was sold and the money was divided.  As well, the $100 value of the carcass of Jill’s ox was divided.

Yesterday, Yocheved owned $1000 worth of ox.  Today she has $500 cash and $50  worth of dead ox.  So much for the condo in Boca.

The rabbis on the Beit Din quoted from this week’s Torah Portion:

If one person’s ox injures another person’s ox, and it dies, they will sell the live ox and divide the money received for it.  They will also divide the dead animal.  (Exodus, 21:35)

This concept is known as Chatzi Nezek — “Half-Damages.”   By selling Yaakov’s $1000 animal and Yocheved’s $100 carcass, they each end up with $550.

But it doesn’t stop there.  What if Yaakov’s ox is worth less than Yocheved’s?  What if the scrawny, sickly old thing was worth only $200?  The law of selling both animals only applies when both animals were of equal value.  In case of a $200 attacker, the court would award Yocheved $200, and let her keep her ox’s $100 carcass. Total award: $300.

WHAT’S GOING ON HERE?!  Where’s the fairness?  Where’s the justice?  Yaakov’s ox destroyed Yocheved’s ox!  Isn’t Yocheved entitled to fair compensation?  Why should she lose?  Yaakov should have to pay the full value of her loss!

Actually, sometimes he does.  The scenario we have been discussing involves a first-time (or second- or third-time) offender.  Let us read the next verse:

If, however, the ox was known to be in the habit of goring on previous occasions (i.e., three or more times – Talmud), and its owner did not take precautions, then he must pay the full value . . .  (Ibid. verse 36)

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Rabbi Huna tells us in the Talmud (Bava Kama 15a) why we go easy on Yaakov.  Really, he shouldn’t have to pay at all!  The owner should be entirely exempted from paying the first three times that his ox gores, since oxen are docile animals and rarely cause damage.  This was a fluke!  (Still, the Torah required him to pay half, in order to insure that he’ll be more careful in the future.)

The reason the payment is limited to the value of the attacking ox is that technically, Yaakov is not guilty; The OX is.  In the case of an ox with an ongoing reputation for goring, YAAKOV is at fault for not watching his ox, and must pay full value for the damage done.

[It should be pointed out that this rule doesn’t apply in all cases.  For example, not every animal is in the category of an ox.  If my boa constrictor swallows your gerbil, or your pit bull mauls my poodle, the owner is liable for full damages on the first offence.  Also, there are many situations when even an ox would be fully liable the first time.] 

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The Torah is teaching us a lesson that our litigious society needs to learn.  Not every act of damage is an act of heinous negligence.

Yaakov owned an ox.  Your average ox is more interested in lazily munching on grass than it is in assaulting another ox.  There was no reason to anticipate this attack.  It was, to a certain extent, a “coincidence.”  It was what the insurance companies would call “an act of G-d.”  There is nobody to sue when a tornado sucks up every ox on your farm.

But Yaakov is not totally off the hook.  He still should have been more careful.

Today’s judicial system allows murderers to get off scott-free on a technicality and would allow Yocheved to turn this unfortunate event into a cash cow.  (Pun intended!)

Bad things happen sometimes.  That doesn’t mean you have to find someone to blame.   Therefore, the Torah tells Yaakov and Yocheved to split the loss.

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I heard about a survey that was taken about getting rich.  People were asked what circumstances they envisioned as a means of becoming wealthy.  Some anticipated winning the lottery.  Others were hoping to discover a long-lost rich relative who had included them in his will.  (Some even considered the possibility of actually EARNING the money!!)

A very large percentage of respondents were hoping to take in a fortune as the result of a lawsuit.

Society today is not concerned about liability; we’re more concerned about how to make a quick buck.

Aren’t you disgusted by the radio commercials from ambulance-chasing lawyers who seek to capitalize on other people’s misfortunes?  (“Call ___, ___, & ___ — Fight back!  Win!”)  I am not a smoker.  I quit smoking over twenty years ago.  I have no great love for the tobacco companies.  But smoking is still legal.  It is ridiculous to sue the companies for producing a legal product that some people are still reckless enough to consume.  The same holds true for obese people who eat Big Macs and murderers who watch TV.

The Torah’s message?  Take some personal responsibility, and GROW UP!

Have a great Shabbos.
Rabbi Yerachmiel Seplowitz

To leave a comment about this article, or to read other readers’ comments on this article, scroll down past the archive links.
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FROM THE ARCHIVES

“Voting ‘Against’ G-d, or, “Whose Torah IS This Anyway?!” (2010)

… The Talmud records a fascinating dispute between Rabbi Eliezer and his colleagues…

Rabbi Eliezer presented logical argument after logical argument to support his view, but to no avail. The Rabbis disagreed. Rabbi Eliezer, a holy man, decided to miraculously defy nature in order to bring home his point. … Finally, Rabbi Eliezer pulled his “Heaven Card.” “If I am right, let the Heavens prove it!”

A heavenly voice boomed in reprimand of the Sages: “Why are you arguing with Rabbi Eliezer, when the Law, in fact, is always in accordance with his opinion?!” …

They wouldn’t budge. Rabbi Joshua stood up and quoted from Deuteronomy (30:12) “It (the Torah) is not in Heaven!”… Pretty gutsy, no? …

Read more.
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“We Wish You a Merry Shabbos???” (2009)

… One Shabbos, he walked into shul and found it to be packed. …it was a non-Jewish holiday. Since stores were legally required to be closed, the otherwise-Sabbath violators took advantage of the opportunity to come to shul, along with their children…

“No doubt,” said the rabbi, “your children must have asked you, ‘Why is this Shabbos different from all the other Shabboses of the year?’

“And you must have answered, ‘This Shabbos is greater than every other Sabbath because today is the birthday of the founder of another religion…’”

Read more.
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“Let’s Make a Deal” (2007)

Okay, I admit it! I am a criminal. I am a lawbreaker. I have confessed in open court. I have thrown myself on the mercy of the court and pled guilty to violating the law…

I got to watch some criminal proceedings too. The prosecutor, lawyers, and judge all played their parts professionally. As each one recited his scripted line, the others nodded and scribbled little notes on their legal pads in their legal folders. One young man was accused of breaking and entering. The prosecutor offered to reduce the charge to a less severe one. Scribble, scribble. The judge agreed. Scribble, scribble. Then the judge said, “According to the statutes, you have to give a valid reason for this type of reduction.” Scribble, scribble.

The prosecutor’s response?

“In the interest of Justice.” Scribble, scribble.

Oh….

Read more.
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“A Capital Idea” (2005)

Regardless of your position on capital punishment, it seems possible to find support from the Torah.

This week’s Torah Portion is replete with prohibitions for which the death penalty applies …

On the other hand, we find in the Talmud that the Sages went to great pains to avoid carrying out the death penalty … Rabbi Moshe Feinstein, of Blessed Memory… wrote in 1982 to “Sar Hamedina” — “The Prince of the State.” (I assume that refers to President Reagan or New York Governor Hugh Carey). Rabbi Feinstein was responding to a question as to the Torah’s view on capital punishment…

Read more.
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“Oh Say, Can you Sue?!” (2004)

…Jack and Jill lived up the hill.

Each of these two neighbors owned an ox. Jill’s ox was out in the field one day, calmly grazing on grass. Suddenly, out of nowhere, Jack’s ox charged, ramming his horns into his unsuspecting neighbor. To Jill’s utter shock, her ox lay there in the field, and bled to death…

Jill hired Johnnie Cochran, who told the jury how Jill’s life had been shattered by the loss of her livelihood. By the time the trial was over… Jack was ruined, and Jill bought a condo in Boca. 

Now, let’s change the scenario a bit.

Jack and Jill are now Yaakov and Yocheved. Instead of going to court, Yocheved, a religious woman, went to … a rabbinic tribunal for justice… She was dismayed by the response…

Yesterday, Yocheved owned $1000 worth of ox. Today she has $500 cash and $50 worth of dead ox. So much for the condo in Boca. …

Read more.
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“Double Trouble” (2003)

What is the best way to discourage theft? … The Torah has a very unique way of punishing someone for stealing. … the Torah makes sure that his efforts will backfire…

 Read more.
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“Your Ivory Tower Is Blocking My Driveway!” (2002)

When we overly involve ourselves in the sublime, we run the risk of ignoring the mundane…  How do we explain the occasional unfortunate situation of a religious person who is  dishonest? 

Read more.
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“Human Rights: Body Piercing and Slavery” (2001)

Jews have always been known for their spirit of social consciousness. We have always been at the forefront in calling out for fairness to all people. We marched with Martin Luther King in Selma… After all we’ve been through, we know what it’s like to be deprived of civil liberties. We would never want to see anyone subjugated or oppressed in any way.

… Where is the outrage?! Where is the J.C.L.U. (Jewish Civil Liberties Union)? Where is the hue and cry from the AFL/CIO, protesting the cruel and unusual treatment of a worker? Is this why G-d took us out of Egypt, so we could be subjected to harsh working conditions and forced body piercing?!!…

Read more.
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 This is the weekly message at www.torahtalk.org.   Copyright © 2000-2014 by Rabbi Yerachmiel Seplowitz.  May be reprinted. Please include copyright information.

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Rabbi Yerachmiel Seplowitz is a Mohel (www.Brisrabbi.com)  and chaplain in Monsey, New York. For information about scheduling a Bris or a lecture, or just to say hello, call (800) 83MOHEL.

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Published in: on February 19, 2004 at 8:36 am  Leave a Comment  

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