Êxodo 21:15 Comentário: Rashi, Chizkuni, Da'at Zekenim & Ramban

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). He is, however, not punishable with death except for a blow which causes a wound (Sanhedrin 85b).

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.

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.

אביו ואמו means either his father or his mother (Mekhilta).