Rav Nissan Kaplan On Parshas Mishpatim


rav-nissan-kaplan ואלה המשפטים אשר תשים לפניהם

פרק כ”א פסוק א
Rav Shalom Pavarsky relates that when he was a young bachur in Ponovesh, one of the bachurim found a respectable sum of money in the Bais Mederesh and went to the Chazon Ish to ask if he was allowed to keep the money.
The Chazon Ish ruled that he was indeed allowed to keep the money and explained that this case is actually a Mishna in Baba Mitzia. The Mishna says if one finds money we can assume the owners were misya’esh, they gave up on ever finding it and therefore the finder may keep it. However normally in order for there to be yiush the owners must know of their loss and actively give up on it. By money however, even if we don’t know for sure that they gave up, the Chachamim say that since a person is concerned about his money he will always check his pockets. Therefor by the time the money is found it’s safe to assume that the owners notices that the money was missing and were therefore misya’esh.
The bochrim went back to Yeshiva and stood in all four corners of the Bais Medresh and observed that for the duration of the Seder not one Bochur checked his pockets. With this testimony they went back to the Chazon Ish and asked him that it seems that the svara of the Chachamim no longer applies today and therefore until we know of the yiush it should not be permissible to keep the money. However the Chazon Ish explained to them that once Chazal made a takana the takana remains even if we feel their logic no longer applies today.
One of the Bochurim present asked the Chazon Ish if this is the intention of the Bal Shem Tov in this week’s Parsha. The Bash”t quotes the Zohar on the Posuk “ואלה המשפטים אשר תשים לפניהם” who translates the posuk as “אלין אינון סדורין דגלגולא”. What do gilgulim have to do with the Halachos of Bain Adam L’chavairo taught in this week’s Parsha?
The Bal Shem Tov explains as follows. We know that if someone steals from his friend and passes away before he is able to return what he stole must come back to this world again to repay his friend. The question that arises is how is it possible for him to unknowingly repay his friend in his reincarnation? He has no knowledge of what he did last lifetime. And even if he loses money and the next person finds it, it’s not considered as if he repaid his debt, rather the finder was zoche from hefker.
However the Bal Shem Tov offers a case where one can indeed pay back his debt unknowingly. If someone loses money and is not Misya’esh, and someone else finds the money. The finder will be allowed to keep the money because Chazal say that most people check their pockets and will be misyae’sh – even though in reality there was no Yiush in this case. In such a case it can be considered as if he paid back his debt and the victim received the money directly from the thief.
The Chazon Ish agreed that this is indeed the same situation.
A famous story is brought down regarding Rav Yitzchok Elchonon Spektor. There was once a Talmud Chachom who would spend the bulk of the year sitting and learning with exception of a few weeks when he would go to the Yerid to do business and support his family for the rest of the year.
One year his wife offered to go in his place, why should he have to waste those two weeks of learning? The husband agreed and she set off to the Fair. As she started getting ready to do some business she noticed her purse with all the money was gone. The woman panicked, this money was intended to support the family for the whole year, without it they were penniless. Suddenly she noticed a commotion; someone had just found a very familiar looking wad of bills. Upon further investigation it was clear that the man had indeed found her money however he refused to give it back stating that this is a non-Jewish fairground and most people here are not Jewish. The Halacha is in such a case we can safely assume the owner was misya’esh of ever getting his money back and the finder may keep his findings.
The two brought their case to the local Rav, Rav Yitzchok Elchonon for a Din Torah. After hearing both sides the Rav ruled that the money must be returned to the woman. The Rav explained that even if the woman gave up hope of getting the money back, however the money was not hers rather it belonged to her husband. The husband didn’t even know the money was missing, therefore was never misya’esh and so the money must be returned.
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“ורפא ירפא” (פרק כ”א, פסוק י”ט)
Chazal learn from this posuk that one is allowed to go to a doctor to be healed. The accepted blessing and prayer that we wish one who is ill is “refuah shelaima”, a complete recovery. Rav Efraim Kibur would point out; we find three phrases where we use the term “shelaima”. Teshuva shelaima, Geula shelaima and Refuah shelaima. The Rambam in Hilchos Teshuva when explaining teshuva shelaima explains that the complete form of teshuva is when Hashem himself, who understands the thoughts of mankind, will testify that this individual will not return to this sin forever. So too when we daven for the Geulah Shelaima, we ask that the final redemption will be forever, unlike the redemption in the time of the second Bais Hamikdosh that only lasted for a limited time. Similarly when we wish a sick person “refuah shelaima”, we are davening for a complete recovery, that the illness should not return forever, unlike those people who are termed healed yet still feel pain when it is hot or cold or rainy and so on.
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“רופא חולי עמו ישראל”
“Who heals the sick people of Israel”
Rav Shlomo Zalman Aurabach, would say over an incident where a heretic Jew approached the Chasam Sofer and his students and asked the following question. Why is it that in the Brocha of Refainu we say “who heals the sick people of Israel”? Does Hashem not also heal the sick people of the other nations? We find that they have state of the art medical centers, top doctors, it must be that they to receive Hashem’s blessings to heal the ill.
Replied the Chasam Sofer, we see in the Brocha Asher Yatzar that Hashem heals all mankind, as the Brocha concludes “Who heals all flesh and is wondrous in his acts”. However the Bracha of Refainu still needs an explanation, why over there do we only speak of healing the people of Israel?
Explained the Chasam Sofer, there is a difference in the way Hashem heals his nation to the way he heals the people of the world. By the Yiddim Hashem heals the Illness, by the non-Jews Hashem heals the person. When a non-Jew has a recovery it is because it was decreed on him an illness for a specified amount of time only, now that the time is up he gets better. By the Yiddim it is different, even if the time has not yet arrived to become better, if one davens to Hashem for a recovery he may merit to become better. This is the wording of the Bracha “who heals the sick people of Israel”, because they are indeed still sick, as opposed to the non-Jews it is simply the time for them to get better.
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After the individual left the talmidim asked their Rebbe, this is an answer benifiting a heretic, but what is the true answer?
Answered the Chasam Sofer, the correct text is indeed “who heals all flesh”. The reason why in Shemoneh Esrai we specify the “sick people of Israel” is in accordance with the Geomorah in Brachos. The Gemorah explains the reason why the Brocha of Refainu is the eighth Brocha is because it corresponds to the Mitzvah of the Eighth day, the Mitzva of Milah. Therefore the Brocha of Refainu was originally established for those who are in pain from a Milah, which is exclusive to the People of Israel, the rest of the sick people were subsequently added on, but this was not the original intent of the Brocha.
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שבת היא מליזעוק ורפואה קרובה לבוא
שבת י”ב
“On Shabbos we are prevented from crying out but the refuah will come soon”
Rashi in Shabbos 14a explains in the merit of not crying on Shabbos even though it is hard, Hashem sends a refuah. Rav Efraim Kibur used to say “b’derech melitza”, when a person is stricken with an illness it is for a reason, for something the person has done. Therefore even when a person prays for a recovery it should not be granted until he does Teshuva for his sin. However no prayer goes unanswered, therefore when he davens, instead of being hit with one hard serious illness, Hashem breaks it up into many smaller illnesses that are easier to bear.
On Shabbos however it is forbidden to pray for such matters therefore the sickness should come back with all its intensity, for this Chazal say that in his merit for not praying for a recovery on Shabbos, “the refuah will come soon”
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רק שבתו יתן ורפוא ירפא
“Only for his lost time shall he pay, and he shall provide for healing”
There was an incident in Bnai Brak where someone hit his friend on the head. The man was taken to the hospital with concerns for a fracture to his skull, after a CT scan and other extensive expensive tests the doctors concluded that there was no damage done and sent the man home… with a $20,000 bill for his hospital tests. The patient turned to the one who hit him and insisted that he pay the hospital fees. However he refused, claiming that hospital tests do not fall under the category of “nezek” for no damage was done, nor does it fall under “repui” because again nothing happened. The case landed in Bais Din who ruled that the “hitter” was indeed responsible for medical tests incurred and must pay the whole amount.
This case caused a stir in the Torah world.
The Rosh Yeshiva of Ponovich, Rav Berel Povarski said that the man should not have to pay. The Rosh Yeshiva compared this to a case where there are two cups in front of us; one contains water and one a poison. If we were to give a person from one cup to drink, and he runs to the hospital to test for poison ingestion, when the test comes back negative there would be no reason for us to pay. What we did was totally harmless.
Rav Avrohom Gurvitz, the Rosh Yeshiva of Gateshead, said that he would require the “hitter” to pay for the testing. To pay for diagnostics, even if all tests come back clear is still a part of “repui” this is what doctors do to treat a person. Therefore even of no harm was done he still must pay the bill. However in the case of the two cups, Rav Gurvitz concurred with the Ponovitch Rosh Yeshiva that the tests were not the responsibility of the one who gave him to drink.
The Rav of Gateshead, Rav Rokav ruled that in both cases the hitter/giver to drink is responsible for all expenses resulting by his actions. In addition he also ruled that they would be responsible for all psychological damage resulting of the incident, even though there was no physical damage done.
This is the opinion of many other Rabbanim as well.
Rav Avrohom Segal brought a proof from Tosfos in Baba Kama 33 that he is not responsible to pay. Tosfos there concluded that there is no obligation to pay “repui” in regards to damage done to animals. Because by animals all damage is inluded Nezek, therefore animals are appraised how much they were worth before the incident and how much less after and the difference is how much he must pay. Any medical damage is included in the depreciation of the animal.
Therefore, were there to be a doubt as to whether or not there was a fracture to the animal’s skull, and because of this concern people would pay less for the animal, we would not be able to bill him for the Nezek because nothing was done. But if he would have to pay because of Ripui than Tosfos is incorrect in saying everything is included in Nezek. Here is a case that is not included in Nezek and would have to be in Ripui, yet Tosfos does not include this as a reason to apply Repui to animals. Therefore we can conclude that diagnosing a possible damage is not included in Repui, and the “hitter” would not be responsible to pay for the hospital bill as this is not Nezek or Ripui.
Others wanted to suggest that just as a husband is responsible to pay his wife’s medical expensive (as he undertook in the Kesubah), and a husband pays all diagnostic expenses for his wife even if she ends up being healthy, so too must the “hitter” pay for all tests incurred by his actions.
In the end Rebbe asked Rav Shlomo Zalman and he too ruled that the “hitter” must pay all expenses incurred.
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ואנשי קדש תהיון לי ובשר בשדה טרפה לא תאכלו לכלב תשלכון אתו
פרק כ”ב פסוק ל
The Daas Zekainim teaches from this posuk a tremendous lesson in Hakaras Hatov. The reason why we give the trief meat to the dog is out of appreciation for the dog for guarding the sheep from the wolves. Yet even though the dog failed this time and did not succeed in protecting the sheep for the wolf and this sheep became a treifa, even so we must not forget all the times the dog did save the sheep and give gratitude for all those times.
How much more so for a friend, a human being who is there for us all the time, and does countless favors for you, yet one time messes up and insults you or doesn’t treat you properly. Is that a reason to forget all the years that he was there for you? This is what the Torah is teaching us; exactly at the time that the dog messed up and let a wolf injure one of the sheep, this is the time to stress that you still appreciate all that it does for you even though it let you down this time.
There was once a simple Yid who used to bring all his questions to the local Rav. After a while the Yid stopped coming to the Rav yet returned again with his questions. The Rav asked him how he has been paskining his questions in the interim. Simple! The man said, I learned the posuk here that treif meat is eaten by the dogs, so whenever I was in doubt I would offer the meat in question the dog, if it would eat it obviously it was trief, and if it refused I would know its kosher and I would eat it myself. The Rav asked him so what changed that you came back to me? To which the simple Yid replied, my dog became to frum for me so I came back to you.
The obvious moral here is that a Rav is not something that we can shop around for; looking for the one with the best psakim, when one has a Rav that Rav must be relied on for everything even if he says right is left, or even if you feel that you were mistreated. Woe is to the person who discounts and disregards years of care and respect from one incident. And if a person is aware of the importance of this beforehand he will be well equipped to deal with it should the situation arrive.

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