Kavanot: פרשת משפטים תשפ״ב

This is very technical and I hope it works. It is based on Rav Copperman’s פשוטו של מקרא, מדור ד, פרק 1-ה: סוגיית טוען טענת גנב כגנב.

פרשת משפטים has all these laws about the שומר, usually translated as “custodian” or “bailee”, someone who has possession but not ownership.

It seems there are two separate halachot in this paragraph: כי יתן איש אל רעהו, the procedure when a watched item is stolen; and על כל דבר פשע, ”every item of liability“, that in any civil liability case, the court has to decide and the liable party has to pay double. That’s the פשט. The דרש from the juxtaposition of the two laws is that the penalty of תשלומי כפל, of paying double, isn’t literally על כל דבר פשע; it’s only in the case of a שומר who falsely claims that the item was stolen: טוען טענת גנב כגנב.

We understand the pasuk of על כל דבר פשע as referring to the case of the previous pasuk; if the שומר claimed לא שלח ידו במלאכת רעהו and it turns out he lied (it hadn’t been stolen; the שומר was hiding it in his house), then that is a דבר פשע and on that, ישלם שנים לרעהו. That’s the מדרש הלכה. The fact that the דרש and the פשט are different doesn’t terribly bother us; if I don’t have the knowledge of the תורה שבעל פה, I would read the text differently. We see the classic example of that earlier in the parsha:

That’s fine, but Rav Copperman points out that Artscroll is not translating the פשט like Rashi, even though they claim to do so. He doesn’t call out Artscroll specifically on this, but says that nobody reads Rashi correctly.

So let’s try to get Rashi right. First off, he says גֻנַּב מִבֵּית הָאִישׁ doesn’t mean “was stolen”.

The whole paragraph is about טוען טענת גנב. There’s an epistemological problem with taking גֻנַּב מִבֵּית הָאִישׁ literally. Rashi assumes that this is in a court case that has come before בית דין: the owner demands that the custodian pay for the lost item; the custodian claims it had been stolen. There is no way for the court to know what actually happened. All they have is the evidence before them. The judges are called אלוהים because they have to be like אלוקים, arbiters of absolute truth. The halachic procedure for determining that is that custodian testifies under oath (the oath is mentioned in the next paragraph) that he was not negligent and is held not liable.

Rav Copperman points out that ובא השומר in Rashi is past tense.

Rashi is reading וְנִקְרַב בַּעַל הַבַּיִת אֶל הָאֱלֹהִים as being in the past perfect; the ו of וְנִקְרַב is not the ו ההיפוך. That would be וַנִקָרֵב. The ו of וְנִקְרַב is the ו החיבור, ”and“, and נִקְרַב is the עבר פשוט, which Rashi always understands as the past perfect. We see that later in this parsha:

The text says ואל משה אמר, not the more common ויאמר אל משה.

In other words, Rashi translates פסוק ז not as “If the thief is not found, then the householder shall approach the court”, but as “If the thief will not have been found, and the householder had already been made to approach the court”, i.e. had already been sued and had already testified. It’s all part of the conditional; the consequent isn’t until the next pasuk.

Rashi assumes that what the halacha calls שבועת השומרים, the oath that the שומר was not negligent and that the object was stolen, has already been taken. The שומר is not liable to pay. If the police eventually catch the thief, the thief (as in any case of גניבה) pays double to the owner (פסוק ו). If the thief has not been found (פסוק ז) when the events of פסוק ח take place, then the consequence in פסוק ח is עד האלהים יבא דבר שניהם. What are the events of פסוק ח?

According to Rashi, דבר פשע means literally, “words of iniquity”: perjury.

Then Rashi goes in an unexpected direction.

Somehow Rashi is bringing in the law of עדים זוממים, which doesn’t show up in the Torah until ספר דברים:

Rashi needs to say this because the text says עד האלהים יבא דבר שניהם; אשר ירשיען אלהים ישלם שנים לרעהו. Who are the שניהם, the two parties whose claims must be adjudicated? It can’t be the owner and the custodian; in that case, if the custodian is not liable the owner isn’t a רשע, doesn’t have to pay anything. They just don’t get paid. The case has to be one of two parties; one of whom is guilty. The case of עדים זוממים, because of the rule of ועשיתם לו כאשר זמם לעשות לאחיו, is exactly that.

So Rashi, reading the פשט of the text, turns it from a discussion of the laws of torts into a discussion of the laws of perjury. Rav Copperman looks at what that implies, in the philosophy of halacha.

The פשט is telling us that even though בית בין, the human court, cannot hold someone accountable for their thoughts, there is an exception:

Rav Copperman often makes the point that the פשט of halacha tells us what the ideal law would be, if we weren’t imperfect mortals:

But the ideal, the way we should think about the law, is still there.

The פשט in דברי הלכה in the Torah, in Rav Copperman’s model, represents the “עלה במחשבה” of מדת הדין. As it were, פשט is not the מצווה but the טעם המצווה.

If we were perfect philosopher robots, we would be liable for plans to steal just as we are liable for stealing. We are only human, so that isn’t the case. But there’s a little hint of that in טוען טענת גנב כגנב.

That hint is here, in the laws of שומרים, to teach us something about the myriad laws of פרשת משפטים. We think of them as trivial details of oxen and sheep, with no relevance to our own lives. But really we are all שומרים of each other’s property. Fundamental to the laws בין אדם לחברו is the tenth commandment, לא תחמד בית רעך. What we think determines what we do, and מחשבה רחמנא קרייה מעשה.