Kommentar zu Schemot 21:15

ומכה אביו ואמו AND HE THAT SMITETH HIS FATHER OR HIS MOTHER [SHALL SURELY BE PUT TO DEATH] — Because Scripture has taught us that he who inflicts a wound upon his fellow-man is liable for damages (cf. Rashi on Exodus 21:24) but is not subject to death, it was compelled to state that he who inflicts a wound on his father or his mother is subject to the death penalty (Mekhilta d'Rabbi Yishmael 21:15:3). He is, however, not punishable with death except for a blow which causes a wound (Sanhedrin 85b).

AND HE THAT SMITETH HIS FATHER, OR HIS MOTHER, SHALL SURELY BE PUT TO DEATH. Our Sages have already taught¹¹⁰Sanhedrin 84b. that his death is by strangulation. This is why He placed next to it, And he that stealeth a man, and selleth him,¹¹¹Verse 16. for he too is punished by the same death. He separated it from the later verse, And he that curseth his father or his mother,¹¹²Verse 17. because his death is by stoning, as it is said concerning him, he hath cursed his father or his mother; his blood shall be upon him,¹¹³Leviticus 20:9. and whenever such an expression [his blood be upon him] is used about someone, his death is by stoning, this being derived from that which is written, They shall stone them with stones; their blood shall be upon them.¹¹⁴Ibid., Verse 27. The reason why He was more severe as to the manner of death of the one who curses his mother or father than as to the manner of death of one who smites them,¹¹⁵In the order of severity stoning is considered the most stringent of the four deaths that the court had power to inflict, and strangulation the least severe. Ramban’s question is thus pertinent: why the most severe punishment for the curser, and the least severe one for one who smites? is because the sin of cursing is more common, for when the fool gets angry he frets himself and curses by his king¹¹⁶Isaiah 8:21. and father and mother the whole day, and a crime that is frequently committed needs a greater punishment [than one rarely committed]. Or it may be that cursing involves a greater sin, because he uses the Name of G-d,¹¹⁷Shebuoth 36a. Also in the Mechilta here: “One who curses his father or his mother is not liable to the death penalty unless he curses them by using the Divine Name.” Needless to say cursing is strongly forbidden by itself, even without using the Divine Name. and therefore he has to be punished for his sin against his father and mother, and also for taking G-d’s Name in transgression and sin. Now the Gaon Rav Saadia¹¹⁸Mentioned here in Ibn Ezra, Verse 16. — On Rav Saadia, see in Seder Va’eira, Note 229. said, that the reason why He placed the matter of stealing a human being between that of smiting one’s parents and cursing them, is because most people are kidnapped when they are young, and they grow up in a strange place unaware of who their parents are, and thus they may come to smite them or to curse them [not knowing that they are their parents]; therefore it is fitting that the thief too be punished by death as they are, since he is responsible for the punishment that is visited upon the child [who smites or curses either of his parents, and for that reason the verse dealing with the thief’s punishment is mentioned between those dealing with smiting one’s parents and cursing them].

ומכה אביו, our sages say that the penalty prescribed applies only if an injury results from hitting one’s parents (Sanhedrin 84).

ומכה אביו ואמו מות יומת, “If someone strikes his father or his mother he shall be executed.” The blow must be such that it causes an injury involving bleeding or a bruise (Mechilta Nezikin section 5). The situation described here is similar to Kings I 20,37: “he struck him and wounded him.” When the Torah writes אביו ואמו, the meaning is not that in order to become guilty of the penalty prescribed the son or daughter has to strike both father and mother. The letter ו here as well as in many other instance means או, “or.” A striking example of the letter ו meaning “or” instead of “and,” is Deut. 17,3 ויעבוד אלוהים אחרים וישתחו להם ולשמש או לירח או לכל צבא השמים, “and he will go and serve gods of others and prostitute himself to them, or to the sun or the moon or to any of the host of heaven;” clearly the letter ו in the word וישתחו cannot mean that he must perform all of these acts of idol worship in order to become culpable. The Torah lists a number of alternatives any of which result in his becoming guilty of death by stoning. In our verse the death penalty for someone striking either parent is death by strangulation.

Which causes a wound. [Rashi knows this] because it says (Vayikra 24:21): “Whoever smites an animal shall pay for it, and whoever smites a man shall be put to death.” [This implies a comparison between the two:] just as smiting an animal [is liable only] when there is a wound [as otherwise there is no damage to the animal], so too with smiting a man, [one is liable only] when he inflicts a wound.

V. 15. Indem הכאה zur Bezeichnung des Totschlags durch die Beifügung ומת vervollständigt werden muss, ist הכאה ohne diese Beifügung nicht Tötung. Die Halacha lehrt, dass gleichwohl eine Verwundung stattgehabt haben muss, wenn Todesstrafe erfolgen soll. Im Zusammenhange spricht sich demnach das Gesetz also aus: מכה איש ומת וגו׳ ומכה אביו וגו׳ wer sonst einen Menschen schlägt, daß er stirbt, ist todesschuldig, wer aber Vater oder Mutter schlägt, ist todesschuldig, wenn auch der Schlag nicht tödlich ist.

ומכה אביו ואמו, “and if someone strikes his father or his mother;” the Torah here spells out the penalty, i.e. legal execution, without even having informed us that this is forbidden, an unusual construction. This question is raised by the Talmud, tractate Sanhedrin, folio 54. We have a rule that no court can convict a sinner except where the Torah has warned us of the sin in question being a sin. Granted that in the case of someone cursing a crowned head or even a deaf person who cannot even hear the curse, is forbidden, i.e. both a low-ranking person and a high ranking person must not be cursed, it is obvious that the same rule applies to social strata in between, and therefore each strata does not need to be written separately; compare (Exodus 22,7 and Leviticus 19,7) but where did the Torah spell out the prohibition to strike a human being without the penalty being spelled out simultaneously? We must fall back on Deuteronomy 25,3, where the Torah warns the court’s clerk not to apply more than the permitted number of lashes to a person convicted of these. If in the case where the physical punishment is mandatory even a minutely excessive force is specifically forbidden, it is clear that striking someone without the consent or even instruction by the court is forbidden, how much more so is striking someone without such legal cover forbidden! In fact, concerning the subject of physical punishment, the halachah is according to the view of Rabbi Meir, who said that if someone is guilty of two penalties, both physical punishment and a financial penalty, (and we do not apply both for the same sin) the physical punishment is not administered. (Talmud, tractate Ketuvot, folio 32) The only exception is if the financial penalty amounts to less that the lowest coin in circulation at the time in the country. In this respect, the halachah does not treat sins committed against father or mother differently from offences committed against someone else. If you were to ask that seeing the verse deals with the prohibition of striking one’s father, a sin which carries the death penalty, how could anyone have even imagined that the penalty would be 39 lashes, seeing that we have a rule that physical lashes are never an option for committing such a sin, (compare Talmud tractate Makkot folio 13), the answer is that we have two different expressions in the verse dealing with that subject in Deuteronomy 25,3. It says both: ארבעים יכנו לא יוסיף,, as well as פן יוסיף להכותו על אלה מכה רבה, “forty lashes he may give him, he must nor exceed this,” and “lest he should exceed above by inflicting a severe wound, etc.;” you may also argue that seeing the subject in our chapter deals with inflicting wounds, how could the penalty be one of execution by a court? How would I know that if the blow administered did not result in a visible wound that it would be punishable altogether? Furthermore, when the Torah speaks about cursing father and mother (Leviticus 20,9) execution is the penalty, how could it occur to anyone to think that the penalty would be 39 lashes? We would have to look at Leviticus 24,21 where the Torah decrees the death penalty for striking a human being, any human being, i.e. ומכה אדם יומת, “if he strikes a human being she shall be executed!” On that verse Rashi felt compelled to explain that the human being meant in that verse is one’s father, and that the reason is to contrast and to compare the penalty for striking animals and striking one’s father, where the former is punishable only by financial compensation to the owner of that animal. We could conclude that just as when said animal did not die from its wounds only a financial penalty is imposed, the same would be true for striking human being who does not die a result. The Torah therefore wrote the word יומת, “he shall be executed,” to show that the verse speaks of a human being who is the father of the man who struck him.(Compare Rashi on that verse.) It is not possible to say that the Torah there speaks of someone who had struck one’s father after he was dead, but the verse speaks of living animals and a living father being the victim. What is the difference between יומת and מות יומת, the usual term for legal execution? The former refers to a financial penalty, just as in Exodus 21,29, where the owner is not executed, but the Torah uses this word to show that he deserves to be executed. We know this as previously the Torah had written: כן ינתן בו, “thus it shall be rendered to him.” (verse 20) This was a clear reference to a financial penalty. In light of the above, we must understand the word יומת in Leviticus 20,9 as having been meant literally and applying to someone who struck his father or mother.

ומכה אביו ואמו, “and if someone strikes either his father or his mother;” why did this verse have to be written? [If killing someone not related to him by blood results in execution, is it not natural that he will not face a lesser penalty for killing his father or his mother? Seeing that theTorah had written: עין תחת עין, “an eye for an eye,” the Torah had to let us know that this law does not apply when the eye of one’s father had been gouged out by his son, but that he faces a more severe penalty in that instance. The Talmud employs an exegetical tool called heckesh, i.e. [according to some scholars, the 19th of these tools enumerated in the 32 such tools listed by Rabbi Eliezer son of Rabbi Yossi hag’lili. Ed.] In order to have halachic validity, this instrument being used in a particular instance must have been a well known tradition, called in the language of our sages: halachah miMoshe mi Sinai, a ruling as binding as if it had been given to Moses at Mount Sinai. Ed.] In our case it would work as follows: just as someone if he has struck his neighbour’s animal is not culpable for such a deed unless the animal sustained a visible wound, so if one strikes one’s father or mother he becomes guilty of the death penalty only if he had actually wounded his father or mother by such a physical blow. The reason it appears in our context in the Torah is that the penalty is parallel to that for murder, something discussed in our paragraph.

אביו ואמו means either his father or his mother (Mekhilta d'Rabbi Yishmael 21:15:2).

Either one or the other. It is written ואמו , and a vav usually means to add to what preceded [and thus would be translated as “and”]. Nevertheless, Rashi explains that a vav can also denote one of the two, [and thus would be translated as “or”], unless the verse specifically states that the two are to be considered “together” ( יחדו ). So it is with the verse, “You may not plow with an ox and a donkey ( ובחמור ) together” (Devarim 22:10). There, the verse needed to state “together” [in order for the vav to mean “and”].

ומכה אביו ואמו מות יומת, “and someone striking his father or mother must be put to death.” The peculiarity here is that the Torah informed us of the penalty for violating the commandment before having spelled out the commandment not to strike anyone. Actually, the commandment that the penalty for striking someone and his being subject to 39 lashes has been established, and the Torah had added that this number of lashes, (Deuteronomy 25,3) must not be exceeded by the person carrying it out as agent of the court. Actually, we could have derived that from logic also, i.e. “if the agent of the court who carries out striking an individual is commanded not to exceed his authority, how much more so does such a rule apply to someone who had no authority to strike anyone!” (Mechilta, Mishpatim chapter 5)

מות יומת SHALL BE PUT TO DEATH — by strangulation (Mekhilta d'Rabbi Yishmael 21:15:4).