Parashat Mishpatim deals with compensation for damages that a person must pay to his fellow. An examination of the verses points to the fact that there are different methods of payment that are required for different types of damage. Someone who allows his animal to graze in someone else’s field must pay “the best of his field.” When someone causes a fire and it spreads and damages, the Torah does not list a specific method of payment, rather it offers a general obligation “he who started the fire must make restitution.” The owner of a goring ox must pay “an ox for an ox,” and the Torah even gives specific instructions on what should be done with the dead animal so that its value is divided between the two sides. In the case of damage caused by a pit that was dug in the public domain “the one responsible for the pit must make restitution; he shall pay the price to the owner.” The biblical verses here relate to an agrarian society that does not yet have a formal legal mechanism and the process of moving from individual cases to general rules had not taken place. For this reason, the Torah uses casuistry – and describes the rules that relate to specific, characteristic cases.
The question is how to make the transition from the casuistic world of law in Parashat Mishpatim to the modern world in which the law is based on principles and rules. In a transition from a legal world that deals with cases to a legal world based on rules, we can easily explain how the rules of dividing up a dead ox can be translated into laws of compensation and burden-sharing, but the requirement to pay “the best of his field” is difficult to translate. Does this mean that when an ox has eaten green tomatoes, payment should be made with red ones in its place? Will a man who destroyed his friend’s shack be required to build him a palace instead?
We find disagreement between Rabbi Yishmael and Rabbi Akiva regarding the Torah’s intentions in requiring the individual who did the damage to pay “the best of his field.” Rabbi Akiva believes that the field given as compensation must be the best of his own field, while Rabbi Yishmael (according to Rav Aha bar Yaakov’s understanding) believes that it must be equivalent to the best field owned by the victim. Both agree that the compensation will only be the value of the damage – the question is defining the quality of the field that must be given as compensation. When paying with a better-quality field, a smaller amount of land would be given. Monetarily there is no difference between the two payments – the value of each field is the same. The issue at hand is convenience – it is more convenient to be paid in large bills than in small change.
The Mishnah in Massekhet Gittin presents a catalogue of payments that lists the differences between how payments are made for different debts. Some are collected from poor-quality land, some from the best-quality land and some from medium-quality land. Compensation for damages are paid from the best-quality land, which is the most fertile and is in the best location – near a river, for example. The Mishnah teaches:
The court appraises land of superior quality for payment to injured parties. And a creditor collects his debt from the debtor’s intermediate-quality land. And payment of a woman’s marriage contract is collected from her husband’s inferior-quality land.
(Gittin 48b)
At first glance it would appear that the obligation to pay compensation for damages from the best-quality land is a biblical law, as the Tosefta teaches:
The court appraises land of superior quality, as it says: “The best of his field and of the best of his vineyard he shall pay.” (Bava Kamma 1:1)
The Mishnah in Gittin, however, says that the enactments found there were made mipnei tikkun ha-olam – for the betterment of the world. The Tosefta in Massekhet Ketubot offers an explanation for this enactment:
Why did they say that the court appraises land of superior quality for payment to injured parties?
Because of robbers and those who take by force.
So that everyone should say: Why would I rob? Why would I take by force?
For tomorrow the courts will take away my best land from me.
And they based this on the verse “The best of his field and of the best of his vineyard he shall pay.”
(Tosefta Ketubot 12:2)
The Tosefta continues in the vein, and offers reason for all of the enactments of the Mishnah – why the creditor collects from intermediate-quality land and why the woman’s marriage contract is collected from her husband’s inferior-quality land. Regarding our case, it suggests that the interest of the court is to punish those who do damage, which is a group that includes robbers. The goal is to ensure that it will not be worthwhile for robbers to steal. If we allowed compensation for damage to be paid from inferior-quality land, then that deterrence would be reduced.
This is a convincing argument, and the argument that at least some perpetrators of damage walk a thin line between criminal behavior and a civil, monetary act is certainly true. For this reason, it is not enough to merely ensure that the victim receives compensation for his loss – we need some level of punishment, as well. The final ruling that fair compensation must be paid, but that it must be paid “from the best of his field,” is a combination of the desire to compensate for the damage but also to create deterrence and fine the perpetrator, as a type of punishment.
The Gemara, however, is uncomfortable with the suggestion that payment from land of superior quality could be considered Tikkun Olam:
Is this ordinance only for the betterment of the world?
This is by Torah law! As it is written with regard to one who damages another person’s property: “Of the best of his field, and of the best of his vineyard, he shall pay.”
The Gemara reminds us that this is a clear biblical teaching, so how could the Mishnah turn a biblical law into a Tikkun Olam ordinance established by the sages?
Ravina offers a fascinating answer to this question. According to Ravina, requiring the individual who caused damage to pay from the best-quality land is, indeed, a biblical command. The reasons offered by the sages – including the suggestion that it is an ordinance established for the betterment of the world – are attempts to explain the reasoning that stands behind the Torah’s law, and to describe how those laws aim for Tikkun Olam. Ravina explains that the Mishnah is presenting a biblical law, but that it follows the opinion of Rabbi Shimon who interprets the rationale behind the mitzva in a given verse. What is the rationale in our case? Why should the perpetrator of damage pay from the best land? Mipnei Tikkun Olam! For the betterment of the world!
When thinking about Jewish law, we usually assume that there is a clear dichotomy between Torah laws and the laws established by the sages. Ravina is making a profound assertion here – that there is sometimes overlap between the two, and that something referred to as a rabbinic enactment may refer, from an alternative perspective, to a law that already appears in the Torah. The words of the sages decipher the mystery of what was already taught previously. The will of God, as expressed in the written Torah, appears in a new formulation in the enactment of the sages. All the sages were doing was to point out the requirement of Tikkun Olam that appears in the Torah.
From this perspective, the current trend of trying to “purify” the word of God and to remove the rabbinic ordinances that developed over time from the Torah and from Jewish law, stands in direct contradiction with the position of the sages, who understood that we reveal the word of God by means of rabbinic teachings.