On Justice, Human and Divine1
If the man has no relative to whom the debt can be returned, the returned
debt is for Hashem [and is given]for the Kohen, besides the ram of
Payment. Restitution. Compensation.
We cannot imagine a stable society in which these were not available to
citizens entitled to them. Securing them is what civil law is all about.
People who are owed money because they have performed services, provided
goods, or suffered a loss because of another, ought to be able to collect
what is theirs.
Torah law addresses all of these, and indeed does the predictable. It, too,
legislates that monies owed ought to be paid. Parshas Mishpatim covers the
gamut of monetary law, dealing with torts, bailments, and theft.
It is entirely predictable – until we arrive at our Parshah. Here we
discover a passage in which there is no claimant, no aggrieved party, and in
a sense, no cause for action. Yet the Torah insists on payment in this
rather obscure case, breaking the mold of monetary law. The Torah not only
mandates payment in the case of gezel ha-ger, theft from a convert, but it
adds on several layers of penalty to boot.
Chris, a convert, has a claim against Reuvain. Reuvain may owe Chris money
because of a debt, past wages due, or some actionable damage that Reuvain
committed. Chris asks Reuvain for what he is owed. Reuvain not only falsely
denies the claim, but he swears by the Name of G-d that he owes nothing.
Chris never married after his conversion, and thus has no heirs. All those
to whom he was previously related are no longer regarded as his kin. All
previous kinship is legally erased upon conversion, when the convert assumes
a new legal persona. Legally, he has no relatives. When he dies, therefore,
no one can lay claim to his property on the basis of inheritance law. His
property is effectively ownerless and available for seizure; whoever seizes
it first acquires legal ownership. In regard to the monies that Reuvain owed
to Chris in his lifetime, it is clear that Reuvain himself is the first on
the scene to “seize” the monies he would otherwise be required to pay. This
seizure effectively puts an end to his indebtedness. Despite the shoddy way
that Reuvain treated Chris in his lifetime, Reuvain ought to be able to
breathe a sigh of relief. Chris’ unfortunate demise should get him off any
The Torah looks at the situation differently. The legal reasoning presented
above is rejected, and Reuvain must indeed pay what he owes. Moreover, he
must add on a stiff twenty-five percent penalty, besides a mandatory korban.
Not having any heirs to receive the payment is no obstacle to making
restitution. Hashem announces that the payment is now due to Him–
“the returned debt is for Hashem,” with the Kohen serving as His proxy.
There is a complication. None of the above holds true unless Reuvain
confesses of his own volition. He has to be the one who wants to make good.
The court has no authority to make him pay.
This makes little sense to us. If he owes the money, he ought to be made to
pay if he lacks the integrity to come forth on his own. If the perpetrator
is penalized an additional twenty-five percent, we would think that his
crime must be unusually severe, and all the more reason that he should be
compelled to pay.
His payment, we must conclude, is not for an ordinary monetary infraction.
The key to understanding it is in the oath that Reuvain offered to Chris in
order to convince him of the truth of his declaration of non-liability.
Every oath invokes the Name of G-d, and joins it to the statement sworn. In
a sense, it takes all the abstractions about G-d, and trains them on the
very practical matter at hand. It brings G-d into the arena of the common,
pedestrian “non-religious” affairs of the community.
Once you join G-d to anything, however, it becomes sanctified. In the case
at hand, moreover, Hashem is invoked twice: first in the original oath, and
once more when pangs of conscience – really the Voice of G-d stirring within
– cause Reuvain to confess. The disputed money has become saturated with
G-d. It becomes a holy object, because Hashem’s Name, Authority and Presence
have been joined to it. Chris’ death now becomes irrelevant. The money is
holy money, and belongs to G-d. Moreover, because Reuvain abused its
holiness – his oath, in fact, was a false oath – he essentially
misappropriated holy property. He therefore must pay a penalty – the same
penalty of a chomesh that he would pay if he misappropriated hekdesh –
property belonging to the Mikdosh!
The chomesh penalty for the false oath is the opposite of, and
complementary to, the double payment for theft. Our penalty is imposed
only when a person confesses his monetary crime. It cannot be imposed by the
court. The double payment required of the thief applies only when imposed by
the court, but not if the thief comes forth on his own. The two penalties
both address the demands of justice, but one relates to Divine justice,
while the other to human justice.
The chomesh payment, as we have explained, recognizes the role of G-d in the
ordinary monetary affairs of men. The double payment for theft, on the other
hand, emphasizes the importance of human society. It does not apply to
gezel, to open and notorious robbery, but to genevah alone, to theft by
stealth. The robber takes property from the hands of its owner. To be sure,
the robber commits great harm in denying the right of another person to
enjoy his property. The thief, however, adds an additional dimension of
moral failing. He takes property while its owner has turned his back to it,
and whose eyes are averted from actively guarding it. Members of society
cannot possibly stand over everything they own, 24/7. Our very notion of
property ownership relies on the protection offered by civilization itself,
on the assumption that people are constrained from evil acts by their
general regard for society and its laws.
Theft, then, as opposed to robbery, contains a disregard for society. Its
punishment, therefore, needs to be a reflection of the value and authority
of that society. The penitent who realizes the error in his crime does not
need to be forced by society to hearken to its voice. The one who swears a
false oath, on the other hand, trifles with the role of G-d in the affairs
of Man. His penalty must be imposed by G-d Himself, i.e. when he is moved by
his conscience, which is nothing less than the Voice of G-d within.
Between these two unusual laws, the Torah teaches us the importance of
justice as applied to ordinary property – the justice of G-d and the justice
1. Based on the Hirsch Chumash, Bamidbar 5:8,10
2. Bamidbar 5:8
3. Shemos 21:37