Halakha Bilangan 5:7: Mishneh Torah, Repentance, Shulchan Arukh, Choshen Mishpat, Shev Shmateta & Sefer HaMitzvot

All commandments of the Torah, whether they be mandatory or prohibitive, if a man violates any one of them, either presumptuously or erroneously, when he will repent himself and turn away from his sinful way, he is obliged to confess before God, blessed is He! even as it is said: "When a man or woman shall commit any sin..… Then they shall confess their sin which they have done (Num. 5.6–7), which is a confession of words. Such confession is a mandatory commandment. How is the verbal confession made? The sinner says thus: "I beseech Thee, O Great Name! I have sinned; I have been obstinate; I have committed profanity against Thee, particularly in doing thus and such. Now, behold! I have repented and am ashamed of my actions; forever will I not relapse into this thing again." This is the elementary form of confession; but whosoever elaborates in confessing and extends this subject is, indeed, praise-worthy. Likewise all those who bring sin-offerings or trespass-offerings, when they offer their sacrifices, whether for their errors or for their spitefulness, find no atonement in their sacrifices, unless they repent, and deliver themselves of a verbal confession, even as it is said: "He shall confess that he hath sinned in that thing" (Lev. 5.5) So, too, are the guilty upon whom the tribunal pronounced either a sentence of death or of stripes, who find no atonement either in their death or in being lashed unless they do repent and make verbal confession. Even he, who injures his friend or causes him damages in money matters, although he makes restitution of what he owes him, finds no atonement, unless he makes verbal confession and repents by obligating himself never to repeat this again, even as is said: "Any sin that man commits" (Num. 5.6).¹Sifra, Lev. 5; Yoma, 36b; Shebu’ot, 13a; Sanhedrin, 43a; Baba Kama, 92b.C.

One against whom there is a monetary claim regarding aught of which he [the defendant] is [illegally] the possessor, is forbidden to seek means to evade [the claim] in order that the person concerned [the plaintiff] should consent to make a settlement with him and forgo the balance [of the claim].²²Terumath ha-Deshen s. 30 Cf. B.K. 40a-b: ‘It has been stated: If a man borrowed an ox on the supposition that it is a Tam but was later discovered to have already been formally declared a Mu‘ad (then if it repeated to gore) the owner pays one half of the damages and the borrower pays (the other) half of the damages. But why should the borrower not contend against the owner, I borrowed an ox, I did not borrow a lion? — Rab said: We deal here with a case where the borrower knew that the ox was a gorer (although he knew not that the ox was formally declared a Mu‘ad). Let him therefore plead: I borrowed an ox in the state of Tam, but I did not borrow an ox that was formally declared a Mu‘ad? — Because the owner might retort: In any case, even if the ox had been a Tam, you would have to pay half-damages? Now, too, you must go and pay half-damages. Let him (the borrower) still contend against him: Were the ox in the state of Tam, damages would have to be paid out of its body (the indemnity would be collected from a sale of the animal and not from my best possessions. , Ex. XXI, 35) ? — Because the owner might retort: In any case, would you not have to compensate me (the full value of) the ox? Let him (the borrower), however, plead: Had the ox been a Tam, I would have admitted (the act of goring) and be exempt from making payment (because he who confesses an act with which a fine is connected, — in this case the half-damages which may be considered as of a penal nature — is exempt from the fine). And even according to the one who maintains (v. B.K. 15a) that half-damages is a civil liability (and by making a confession he would not be exempt), the borrower might still contend: Were the ox in a state of Tam, I would have caused it to flee to the meadow (and would have thus avoided payment out of its body which is the law in the case of Tam. , Ex. ibid.) ? — We deal here with a case where the Court of Law took steps first and seized the ox. If so, why should the owner pay half-damages? Let him contend: You were the cause of making my ox fall into the hands of one with whom I cannot go to law? — Because the borrower might argue against him: Were I even to have returned it to you, would they not have taken it from you? But let the owner say to the borrower: Were you to have returned it to me, I would have caused it to flee to the meadow? — Because the borrower might retort: In any case, would the damages not have been paid from the best of your possessions (since the ox was designated Mu‘ad while still in the possession of the owner) ? — This would be a valid argument (by the borrower) where the owner possessed property, but what can be said where the owner possessed no property? — Because the borrower can say to the owner: As well as I am obliged to pay you (i.e., to restore the ox), I am obliged to pay him (the plaintiff who is your creditor). This follows from (the dictum of) R. Nathan. For it was taught: R. Nathan stated: How do we know that if a man claims a Maneh (100 Zuzim) from another and the latter (claims a similar amount) from a third, that money is collected from the one (the last) and given to the other (the first) ? From the verse (Num. V, 7) : And give it unto him whom he hath trespassed (translating: And he [the last debtor] gives it unto him [the first] to whom he [the second] is indebted).’ The argument: ‘I would have caused it to flee to the meadow’ is attacked by Tosaf., a.l. s.v. הוה מערקנא ליה because this would certainly be regarded as an illegal act according to R. Akiba (contra R. Ishmael in B.K. 33a) who is of the opinion that both the plaintiff and the defendant become joint owners of the ox and consequently by causing the ox to escape to the meadow the defendant is regarded as a robber. Furthermore the Court of Law has a right to pronounce the ban against the defendant if he evades payment of damages. Therefore, Tosaf. explain that what is really meant by this argument is this: By causing the ox to flee to the meadow the plaintiff would have made a settlement with me for a small amount. Consequently, the borrower by not returning the ox to the owner has caused the latter damages by having to pay the difference between the settlemnt and the full amount of damages. This explanation of Tosaf. contradicts Caro’s present ruling according to which one is forbidden to employ evasive means in order to obtain the consent of the plaintiff to make a settlement and to forgo the difference. W.G. removes this contradiction by explaining that in B.K. the circumstances are entirely different because the borrower has a valid plea against the owner, viz., that the latter can have nothing against him, since he borrowed the ox on the assumption that it was Tam and it was discovered that it was declared Mu‘ad, consequently, he is not responsible for making any payment towards a liability which is in a different category. Hence, he may employ a vague and paltry reply, namely, ‘I would have caused it to flee to the meadow.’ The same vague reply could be given by the owner, but it does not mean that it is permissible to actually do so. In short, it means that under the circumstances one may state that he would have acted thus, but not that it is really permissible to do this (v. Be’er Eliyahu). In the present ruling however, we are told what the final law is in such a case. Tummim advances another interpretation. In B.K. we deal with a case where the owner may be trying to collect an old loan from the plaintiff, but he has no witnesses to prove this. Consequently, under the circumstances he may employ evasive means to recover his debt. Shebuth Ya‘akob differentiates between Tosaf. and our present ruling as follows : In B.K. by causing the animal to escape to the meadow it would be considered merely an indirect act, which is permitted on the principle, ‘sit and do nothing’ (שב ואל תעשה עדיף), i.e., it is better not to act directly in doubtful cases; whereas in the present ruling the prohibition is against a direct act to force one into a settlement through evasive means. , also Sheb. 31a that it is forbidden to use evasive means even in support of the truth. Tummim and Nethiboth write that the present ruling has reference only where the plaintiff has a just claim, but where the defendant has a valid counterclaim which he cannot ascertain before the Court of Law, he may employ evasive means, provided he does not appear as a wicked person in the eyes of the Judges. Gloss: And if he violated [this law] and employed [evasive means], he does not comply with the requirements of Heaven until he restores to him [the plaintiff] what rightfully belongs to him.²³RaShBA in Resp. Cf. B.K. 55b-56a: According to R. Joshua one of the acts for which one is exempt before men but is liable before Heaven, is to hire false witnesses to offer testimony. Regarding this the Talmud says: ‘In what case? Shall we say for his own benefit, then he has to pay back the money (he thus obtained illegitimately) and should be liable even by the judgment of men? — It therefore means for the benefit of his friend.’ Hence, ‘for his own benefit’ must mean that he employed evasive methods. Yet, it states ‘he has to pay back the money’ whence it follows that the money is recovered by the judgment of men which contradicts Isserles’ ruling who states that ‘he does not comply with the requirements of heaven’ which implies that he is exempt by the judgment of men. Isserles must therefore be in in accord with Tosaf. ibid., s.v. ממונא according to whom if we were to know that they are false witnesses he would have to pay, but since we are ignorant of this, the Talmud cannot very well state that he is exempt by the judgment of men. So too, Isserles, states that ‘he does not comply with the requirements of Heaven’ because by employing evasive means he has thereby kept the entire matter hidden from people so that we are unaware whether he has anything in his possession illegally or not. Hence, the statement, ‘he does not comply with the requirements of Heaven.’

(Kof) “Robbing an ordinary person is more severe than robbing the Most High, (i.e., taking consecrated property). As with [robbing an ordinary person, the Torah] has sin precede me’ilah (trespass), [whereas with robbing the Most High], it has me’ilah preceding sin.” With robbing an ordinary person, it is written (Lev. 5:21), “If any one sin, and commit a trespass, etc.” But with one who misuses consecrated items, it is written (Lev. 5:15), “If any one trespasses in misuse (timol ma’al) and sins unwittingly, etc.” And this is a statement of Rabbi Levi in the chapter [entitled] HaSfina (Bava Batra ).⁵⁸Only the first part of this appears in our standard text of the Talmud, but the meaning is the same. And it requires explanation – as [just] because it had sin precede me’ilah, [does that mean] it is more severe? As both [terms] appear in both. And it appears to me that it can be explained according to that which is written by Rabbi Yitschak Arama in Parashat Chukkat of Akeidat Yitschak, that even the most complete person sins in something, etc. Indeed, he is compelled by his nature, as the verse states (Ecclesiastes 7:20), “For there is no man who is righteous in the world [… who does not sin].” But when it is in the manner of either being from the light sins or after complete repentance, he will certainly not be punished; as the Sages, may their memory be blessed, said (Rosh Hashanah 12b) “I am He before he sins, and I am He after he sins and repents.”⁵⁹The Talmud (the wording of which is slightly different than the quote) is referring to God’s attributes of mercy in Exod. 34:6). However we do not understand from this that no sinner is ever punished. As even though – in his not being God – he is compelled to sin, he is not compelled to wallow in sin and have it become habitual. See there. And [so] it is elucidated that man is not fitting to be punished for sinning, since he is compelled to it – and especially if it is from the lighter sins. Rather the main punishment comes in his wallowing in it and making it habitual, and not repenting. As anyone [can repent]; as it is written (Deut. 30:11), “it is not a wonder […] and not distant, etc.” – and the Sages, may their memory be blessed, say this is referring to repentance.⁶⁰The first known source for this is actually Ramban on this verse. And that is because while the [fulfillment of all the] actual commandments [is] a wonder for man and distant from him since he is a man and not divine, and is [so] compelled to sin – especially with the lighter sins – he is not compelled to wallow in them and make them habitual. And he needs to regret and repent, [as] the commandment of repentance is not a wonder and distant. And it is because of this that Rabbi Levi decides that stealing from an ordinary person is more severe than from the Most High. For with stealing from the Most High, [the Torah] had trespass precede sin; as since it is from the lighter sins, it is not called a sin for a man, given that “there is no man who is righteous in the world who only does good.” And the main sin [here] is because he wallows in it and does not immediately regret [it] after doing it. And that is why it has trespass before sin; as the sin is [afterwards] when he does not regret [it]. For this reason, it is written (Num. 5:7), “and they shall confess,”⁶¹In another section dealing with misusing sanctified property. such that they shall repent. But the trespass itself is not in the category of sin, since man is compelled to do such a light sin; which is not the case with robbing an ordinary person. [As] that is more severe, since a man can withstand [its temptation]. Even though he is not divine, he is not compelled to rob his fellow – [something that is] in the category of friendship and brotherhood. Hence with robbing an ordinary person, the trespass itself is the sin. And for this reason it had sin precede trespass.