Kommentar zu Schemot 21:20

וכי יכה איש את עבדו או את אמתו AND IF A MAN SMITE HIS SERVANT OR HIS MAIDSERVANT — Scripture speaks of a Canaanitish servant. Or perhaps this is not so, but it speaks of a Hebrew servant? Scripture however states, (Exodus 21:21) “for he is his money”. How is it in the case of his money? It is something that is his forever (i. e. it is something the possession of which is not limited to a definite time)! So also the servant referred to here is such a one as is his forever (and only a Canaanitish servant serves his master for ever, cf. Leviticus 25:46, whilst the Hebrew servant goes free after six years). But surely he (one that smites his servant) is included in the general statement, (Exodus 21:12) ”Whosoever smiteth a man [so that he die shall surely be put to death]”; why, then, is this case mentioned at all? But Scripture singles it out from the general statement that he (who smiteth his servant etc.) may be subject to the particular regulation of “a day or two” (Exodus 21:21) — that if he (the servant) does not die beneath his hand and continue to live twenty-four hours his master should be freed from the death-penalty (Mekhilta d'Rabbi Yishmael 21.20.1).

IF A MAN SMITE HIS BONDMAN. Our Sages have already perforce derived from the expression, for he is his money,¹³⁷Verse 21. that this verse speaks of a Canaanite bondman, and the plain meaning of Scripture is indeed as they say, for his countryman, a Hebrew man or woman, is not called plain eved or amah without any further qualifications.¹³⁸See also Ramban above Verse 7, and Note 67. Scripture states ‘basheivet’ [with a patach under the beth, which indicates the definite article, thus meaning] “with the rod”: [And if a man smite his bondman, or his bondwoman, with the rod], because it is the custom of a ruler or master to keep in his hand a rod, and G-d therefore warned him that even if it be a rod of correction¹³⁹Proverbs 22:15. and not a wooden cane, he should be careful with it and should not use it to hit even a Ganaanite bondman with a persecution that none restrained.¹⁴⁰Isaiah 14:6. This is the purport of the expression, and he die under his hand, meaning that he kept striking him until he died. It was not necessary for Scripture to state the punishment which he is liable to, but it just stated that he is not to go free merely because the bondman is his money, but he shall surely be punished, as is the punishment of anyone who strikes another person so that he dies, where Scripture has said, he shall surely be put to death.¹⁴¹Above, Verse 12.
In line with the plain meaning of Scripture the intention of: Notwithstanding, if a day or two ‘ya’amod’,¹³⁷Verse 21. [generally translated “he continues”], is that the bondman literally gets up “and stands” on his feet. This is why it was necessary for Scripture to say a day or two, the meaning thereof being that if on that day or on the following day the bondman will stand up on his feet, he [i.e., the master] shall not be punished. And the verse is to be understood as if it said: “notwithstanding, [if he stands up] ‘bayom’ or ‘bayomayim’ (in a day or in two) or ‘l’yom’ or ‘l’yomayim’ (to a day or to two).¹⁴²The verse has it: yom o yomayim [literally: “a day or two”]. This fits in with the translation of ya’amod as “he continues,” thus: if he continues [living] a day or two. Ramban who interprets ya’amod in its literal sense — “he stands up” — therefore concludes that the sense of the verse is: “notwithstanding, if he stands up in a day or in two etc.” The opinion of the Rabbis mentioned further on will explain sufficiently why the Torah did write here yom o yomayim. There are many such cases [where the prefix beth or lamed is missing as it is assumed in the meaning of the word]. Thus, at first He had said, and he die under his hand, which might be taken to have meant that the bondman died immediately at the time he struck him; therefore He referred back and explained that if on the day he struck him he stood up on his feet, or even if he could not stand at all on that day, but did so on the next day, the master is free from punishment. But if he did not stand up at all, the master is liable to punishment, even though the bondman only died on the second day, for that too is considered as if he died under his hand. It did not mention a case where he stood up on the third day, for if the bondman lived three days, the master is free from the death penalty, since this is no longer considered a case of he die under his hand.
In the opinion of our Rabbis¹³⁶Mechilta here on the Verse. Scripture mentioned yom o yomayim [“a day or two,” and not bayom o bayomayim, “in a day or in two”], in order to teach us that [for the master to go free] the bondman must have survived twenty-four hours, and the meaning of the expression used is: “a complete day [consisting, as it does, of twenty-four hours]; or two days, neither of which consists of a complete day, [but instead the period of twenty-four hours is made up of the parts of two separate days].” Had it said just “a day,” the bondman would have had to continue living for a night first and then the following day, as is the “day” of the Torah mentioned at the creation¹⁴³And there was evening and there was morning, one day (Genesis 1:5). and in connection with the Sabbaths and festivals; [but now that it said, a day or two it means any period of twenty-four hours, as explained above]. The word ya’amod [in accordance with the opinion of the Rabbis] then means that “he continues to live.” Similarly, that they may ‘ya’amdu’ many days,¹⁴⁴Jeremiah 32:14. means “continue to exist.” And this is the correct and true interpretation of the verse.

נקום ינקם, the blood of the slave. The master is certainly not permitted to administer such a cruel blow even though he owns this human being. He is allowed to administer physical punishments as we know from Proverbs 29,19 בדברים לא יוסר עבד, “a slave does not respond to mere oral chastisement.”

בשבט, with a rod, etc. Maimonides writes in chapter 2,14 of Hilchot Rotzeach: "I believe that the word "rod" is to be taken literally. If the master hit the slave with a knife, a sword, a stone or a fist, or something similar, and the court judged that the slave would die from the result of such an attack even after a full year, the master is subject to execution." I do not understand why the master should be executed if he used an instrument which is normally not lethal if the victim did not survive for 24 hours. In such a situation the assailant is not guilty of the death penalty even if he struck a person who is not his slave, i.e. not his personal property. I believe that the reason the Torah writes בשבט with a rod, is that if the master's actions prove that all he wanted to do was to discipline his slave, something normally done with a rod, G'd allowed him a 24 hour period before he would be considered guilty of murder seeing that the slave is his personal property and one does not destroy one's personal property on purpose. If the instrument used to inflict fatal injuries on the slave was one that is not normally employed when one wants to discipline someone but a weapon used when one is about to kill a person, such as stabbing the slave in his belly with a sword, the Torah does not grant the master a reprieve of 24 hours during which survival of his slave may save him from a murder charge. He will be guilty of murder even if death occurs a year after the stabbing, for instance.

בשבט, an example of an instrument used to administer physical punishment to one’s slave in order to discipline him. If the slave had been struck with a sword, for instance, even if he had not died within the first twenty four hours, the master would be guilty of manslaughter as the tool used to inflict the injury points at criminal rather than disciplinary intention. The subject of our verse is a gentile slave. A Jewish servant, by contrast, not being the personal property of his master, is treated legally in all respects as if he were a hired hand, with the exception of his master (employer’s ) right to give him a gentile slave as his wife.

With a rod. Killing him with a rod is crueler than killing him with a sword, therefore heaven will take special revenge against the master.

וכי יכה איש את עבדו, “if someone strikes his (gentile) slave, etc.” The subject of this verse is only a gentile slave, whose body is owned by his master. The Torah teaches that although the stick had been used as a disciplinary rod, and the stick was not a walking cane (whose use as a disciplinary means might inflict far more pain and injury,) the owner must take care not to inflict the kind of injury that might prove lethal. Otherwise, the death is to be avenged.

Included in: “Whoever strikes a man who dies. . . [Rashi asks this] because even a gentile is included [in the term איש (man), in the verse: “Whoever strikes a man who dies shall be put to death.”] And certainly a gentile slave, who is obligated to keep mitzvos, [is included]. For a gentile is only excluded when the Torah writes רעהו (his friend).

נקם ינקם, the reason the Torah employed the term “revenge” in this context [instead of speaking of judicial execution, Ed.] is that it is clear that the master had intended to kill the slave when hitting him. He had arranged to do it in such a sly way that it would be considered as a blow out of a feeling of revenge but not one intended to be lethal. The Torah characterises the master’s execution as an act of “avenging the servant” so that everyone will be aware that he had intended to kill deliberately and the execution is the avenging of an uncalled for murder. If the killing of the master was not judicial execution, he himself will also be avenged.

V. 20. Dass hier von einem עבד כנעני die Rede ist, beweist das כי כספו הוא (V. 21). בשבט, ein Mittel der Züchtigung. Nur wenn er mit einem zur Züchtigung erlaubten Mittel und zur Züchtigung ihn geschlagen, tritt die V. 21 ausgesprochene Milderung ein. (Ramb. Hilch. Rozeach. 2, 14). Onkelos übersetzt daher auch בשולטן, in Ausübung seines Herrenrechtes.

וכי יכה איש, “and if a man strikes, etc.;” how do we know that the verse also addresses women? Rabbi Yishmael says what we already attributed to Rabbi Eliezer as an answer to this question on verse 18.

בשבט WITH A ROD — Scripture speaks of a rod that is capable of inflicting death. Or perhaps it speaks even of one that is not capable of inflicting death (but some-how or other the servant died beneath his hand)? Scripture however states, (Numbers 35:17) in reference to an Israellite (cf. Numbers 35:15) “And if he smote him with a stone in the hand, wherewith he may die, [and he die, he is a murderer]”. Now is not the following statement a logical conclusion à fortiori? How is it if one has killed an Israelite whose case is more stringent (inasmuch as the leniency mentioned in v. 21 is not applied to it)? He is not subject to the death penalty unless he smote him with an instrument capable of inflicting death and unless it be a limb through the striking of which by such an instrument he is likely to die! Then in the case of a servant where (as can be seen from v. 21) the conditions are less stringent, does it not follow all the more that he is not subject to the death penalty? (cf. Mekhilta d'Rabbi Yishmael 21.20.4).

By the rule of “a day or two.” You might ask: Why did Rashi not ask his question on the verse [immediately, rather than first proving that it speaks of a gentile slave]? The answer is, so we will not say: Since the Torah taught the special law of “a day or two” concerning a gentile slave, it will apply also to a Jewish slave, in accordance with the rule of davar shehaya bichlal. . . [which allows this special law to apply to everything in the category of slaves]. Therefore Rashi first proves that the verse is talking only about a gentile slave. And Rashi is saying, so to speak: “Now [the rule of ‘a day or two’] will come out clear, [since we have established that the verse is not speaking of a Hebrew slave].”

נקום ינקם bezeichnet die Hinrichtung durch das Schwert, wie והבאתי עליכם חרב נוקמת .(Wajikra 26, 24) (Sanhedrin 52 b). Es ist dies die auf Mord gesetzte Strafe Dass diese Strafe hier bei dem an einen Sklaven begangenen Mord durch נקמה ausgedrückt ist, dürfte tief bezeichnend sein. Wie aus Bereschit 9, 1—6 erscheint, ist der Mord als eine höhnende Verleugnung des צלם אלהים-Charakters des Menschen zu begreifen. In dem Morde eines Menschen ist somit der göttliche Charakter der ganzen Menschengesellschaft, und innerhalb derselben zunächst derjenige des nächsten Kreises des Ermordeten angegriffen. Bei dem Freien tritt daher der nächste Verwandte als גואל הדם als "Annehmer des vergossenen Blutes" auf. Der Leibeigene, der keinen גואל in der Verwandtschaft hat, findet in der Gesamtheit diesen גואל. Sie hat als Rächerin des in ihm gehöhnten göttlichen Menschencharakters aufzutreten.

בשבט, “with a rod;” the Torah chooses as an illustration instruments with which the average master disciplines his slaves. This is why the first letter ב in this word is “open,” as if the Torah had written: בהשבט. If the master had struck that slave with a sword or other instrument used to inflict death, he will be treated as an intentional murderer even if his victim survived for a day or two, seeing that this was not the way one disciplines a person.

נקם ינקם HE SHALL SURELY BE AVENGED — This means execution by the sword. For thus does Scripture state, (Leviticus 26:25) “a sword avenging the vengeance of my covenant” (Mekhilta d'Rabbi Yishmael 21.20.6; Sanhedrin 52b).

And upon a limb which is capable of causing death. . . [Rashi knows this] because [regarding a Yisraelite victim] it says (Devarim 19:11): “And he will ambush him, arising against him.” This means that he has intent to kill him. But if the rock [or the stricken limb] was not capable of causing death, perforce he had no intent to kill him. You might ask: [If this law can be learned from a Yisraelite victim,] why does the Torah need to write in this verse, “With a rod”? The answer is: a fortiori reasoning [“it follows even more so. . .”] is not a valid basis for applying a punishment.

ומת מחת ידו, “and he dies as a result of this beating;” seeing that he had used permissible means of disciplining, the death of the victim is attributed to something like an accident, the master not having intended to deprive himself of the services of this slave. An alternate interpretation of the expression: תחת ידו; “while still being beaten;” this is no longer “disciplining,” but killing with one’s own hands.