Comentário sobre Êxodo 21:19

על משענתו (lit., with that on which he relies) — i. e. his former healthy state and vigour (Mekhilta d'Rabbi Yishmael 21:19:1; cf. Onkelos).

IF HE RISE AGAIN, AND WALKS ABROAD ‘AL MISH’ANTO’ — “in his former healthy state and vigor.” This is Rashi’s language. And Rabbi ibn Ezra said that the reason why this word [which means literally: “support”] is used, is to tell us that he must not be dependant upon others for the ability to walk, like an invalid, but must walk by himself;¹³²Thus according to Rashi mish’anto is “his physical strength;” according to Ibn Ezra, it is “his leaning” or “support.” Ramban will proceed to explain it in its literal sense — “on his staff.” Almost all translations follow Ramban’s interpretation. only then shall he that smote him be quit from prison.
In my opinion, mish’anto is to be understood in its literal sense, [a staff], just as in the verses: every man with ‘mish’anto’ (his staff) in his hand for old age;¹³³Zechariah 8:4. ‘mish’eneth’ (the staff) of this bruised reed.¹³⁴II Kings 18:21. Scripture is thus stating that if the injured person’s health improves sufficiently to enable him to go out walking as he wishes in the streets and in the broad ways¹³⁵Song of Songs 3:2. with his staff, like those healed from some prolonged disabling injury, then shall he that smote him be quit; and it further teaches us that even if the injured man is careless later about his health and dies after that in his weakness, the assailant is free from the death penalty. Scripture says and he walketh abroad because it speaks of the customary way of life, for injured men who were laid up in bed do not go out walking again until their wounds have healed and they are out of danger, this being the sense of the phrase, and he walketh abroad, because if he just gets up and walks in his house on his staff, and then dies, the assailant is not free [from the death penalty].
In the words of the Mechilta:¹³⁶Mechilta here on the Verse. “If he rise again and walketh. I might think this means within the house; Scripture therefore says, abroad. But from the word abroad I might think that even if he was wasting away [the assailant is still free from punishment]; Scripture therefore says, if he rise again.” This explanation too is very correct, that Scripture should be saying that if the injured man gets up completely from his bed and goes steadily outside — without having to go back to his bed when returning from outside, as is the way of those who continue to waste away — even though he is weak and has to lean upon a staff, the assailant shall be let off. In general all this is to be interpreted as being figurative, language expressing people’s practical conduct, and the basic rule is that he must have been assessed as being capable of recovery. This is why Onkelos translated al mish’anto: al boryeih (in his healthy state).

רק שבתו יתן ורפא ירפא, he shall only pay for loss of income and cause him to be cured completely. This means that even if the victim has regained the ability to get around unassisted but he cannot yet pursue his occupation, the attacker has to continue payments for loss of income. The same applies to continued medical supervision of the victim if the latter deems same as necessary.

'אם יקום והתהלך וגו, if he dies, even after a lengthy interval, the attacker will be executed. If the victim was one’s servant the owner is guilty of the death penalty only if the victim died immediately as the result of the blow, not if he survived for a day or two.

על משענתו, “on his cane.” According to Rashi the Torah means that the injured person can manage to walk without any external assists, as distinct from sick and weak people who require canes or “walkers.” Nachmanides writes: “it appears to me that the Torah means that if this injured person is able to walk even only with the help of a cane, or “walker,” that the person who has hit him is exonerated from the charge of manslaughter (if eventually, more than 24 hours later the victim dies) The Torah’s example is based on the most likely result of injuries sustained by being struck by a stone or a fist. The immediate result may be a short sojourn in bed followed by a rapid recovery. The fact that the victim has ventured outside before he died, is an indication that any danger he had been in had already passed before that stage. If he had only been able to hobble around indoors, the attacker is not exonerated from causing the death of his victim.

ורפא ירפא, “and he shall provide for healing.” Whenever the Bible mentions the word רפואה when applied to a human being the letter פ always appears with the dagesh. For instance Jeremiah 51,9 רפאנו את בבל ולא נרפתה, “we tried to cure Babylon but she was incurable;” when we find the word used as something being performed by G’d then there is no dagesh in the letter פ. Example: Jeremiah 17,14 רפאני ה' וארפא, “Heal me O Lord and I shall be healed.” Another example is found in Psalms 147,3: הרופא לשבורי לב, “He heals the broken-hearted, etc.” There are many more examples. The reason for this distinction in the spelling of the description of the applied cure is that when man, i.e. a physician, administers a cure it is apt to be accompanied by pain and suffering, whereas a cure administered by the Lord is a painless procedure. This is part of the meaning of Proverbs 10,22: “the blessing of the Lord enriches, He does not add sorrow to it.”
When the sages in Baba Kama 85 stated that the words ורפא ירפא in our verse constitute permission for a physician to practice his art they said so only in connection with externally visible injuries or symptoms of diseases; internal diseases, especially mental diseases are not subject to treatment by physicians of flesh and blood. They are the sole domain of the One who provides the soul to all living creatures. [This interpretation seems to be based on Ibn Ezra, but is disputed by other authorities. Ed.].

On his health and his strength. [Rashi knows this] because if the meaning of משענתו was literal, “his staff,” the person [walking on his staff] could still be ill and might still die. If so, why does it say, “The one who struck him shall be acquitted”?

V. 19. על משענתו kann unmöglich an einem Stabe, oder einer Krücke heißen. War der Beschädigte früher in seinem Gehen ungehindert und bleibt jetzt in Folge des erlittenen Schlages lahm, so kann unmöglich dies durch bloßen Ersatz des Versäumnisses und der Heilungskosten vergütet sein. Ebenso wenig kann es die noch andauernde Schwäche des Rekonvaleszenten bezeichnen sollen; denn, so lange die Folgen der Verwundung noch andauern, wird das ונקה המכה nicht ausgesprochen werden können. Es würde ja auch sonst על משענת heißen, wenn es eine Stütze bezeichnen sollte, deren er sich erst jetzt in Folge seiner Erkrankung bedienen müsste. משענתו heißt aber seine gewohnte Stütze und bezeichnet es vielmehr: על בוריו, seine völlige Wiederherstellung. Er geht wieder, wie er vor der Beschädigung gegangen.

אם יקום והתהלך בחוץ, “if he (the person who had been knocked to the ground) gets up and walks outside the house unaided;” if that person takes to his bed and does not even partially recover, so that he dies before having been able to walk, the party that knocked him down will be tried for murder (and executed if he had been duly warned by witnessing observing the fight).

ונקה המכה [WHEN HE RISES AGAIN…] HE THAT SMOTE HIM SHALL BE FREED — But could it enter your mind that this person who has not killed anyone at all should be subject to the death penalty? Why, then, is it necessary to state this? But it is intended to teach you that he is kept in prison until we discover whether the other is completely healed or not, and what the verse implies is this: when this man rises again (אם יקום) and walks in the street in his former vigour, then he who smote him shall be freed from prison, but so long as the other has not risen from the sick-bed etc. the man who smote him is not freed (Ketubot 33b; Sanhedrin 78b).

Scripture states, only he shall pay for the loss of his time, and shall cause him to be thoroughly healed, but it does not say, “he shall pay for the loss of his time and his medical care.” in order to tell us that he must pay the money for the doctors to heal him, and the injured person cannot demand that he should give him the compensation and he will do other things with it. Instead, the assailant must heal him under all circumstances.

שבתו, loss of income from the victim’s normal occupation by being bedridden.

רק שבתו יתן ורפא ירפא, “he only has to pay compensation to the victim for time lost from work, and for his medical expenses.” The Torah refers only to the fee of the attending physician, not to the cost of medications, which, if prescribed by the physician will also be supplied by him. The victim is not entitled to forego the medications and retain the cost of them. Unless he uses them, the attacker is not liable for their cost. Our sages derive from the wording ורפא ירפא that the physician is permitted to practice his art, and that we do not adopt the attitude that if G’d wants him to recover he will recover and if not he will die, i.e. that it is not up to us to interfere. (Baba Kama105). The comment in the Talmud is strange as we have a law (Leviticus 19,16) that one must not stand idly by when a fellow Jew is in mortal danger and could be saved when one takes the appropriate action. The answer given is that the verse ורפא ירפא is needed to make clear that if through lack of skill or misdiagnosis the patient dies after receiving treatment, we do not hold his physician responsible for the death. Another interpretation of the line is that the physician is entitled to charge for his services. If not for this verse we would have assumed that it is one’s moral and ethical duty to heal for free, just as judges do not get paid, and just as Torah is taught for free. [the latter, no longer common, is excused by Abravanel on the grounds that if the teacher of Torah is economically underprivileged, lives in dire circumstances, his students will not want to “buy his wares,” i.e. his Torah, believing that Torah scholars are slated for a life of poverty. Ed.]

He must pay the doctor’s fee. [He must pay in all cases because] even if he is a doctor, the victim may claim: “I do not want you to heal me, because to me, you are like a devouring lion!” And if the striker says, “I know a doctor who will heal you for free,” the victim may claim, “A doctor who heals for nothing is worth nothing.”

We may understand the word רק as referring to something mentioned by Maimonides in Hilchot Chovel Umazzik. We estimate the cost of medical care as well as the loss of income as soon as the fight is over and the attacker makes these payments immediately. If the estimate proves wrong and the victim takes longer to recover, the attacker is not assessed additional damages. This ruling applies only if the attacker is willing to pay the whole amount of damages immediately. If the attacker preferred to compensate the victim on a day to day basis this limitation on the amount of total damages assessed by the judges does not apply. Maimonides appears to have derived this rule from the word רק in our verse.

ונקה המכה kann nicht sagen wollen: frei von Todesstrafe; es wäre dies überflüssig, da der Beschädigte lebt. Es heißt vielmehr: frei von der Untersuchungshaft, und setzt den Fall voraus, אמדוהו למיתה, das Gericht habe den Schlag für tödlich erkannt, und musste der Täter bis zum Ausweis des Erfolges in Verhaft bleiben; es ist daher hier der Satz: אמדוהו למיתה וחי פטור ממיתה וחייב בה׳ דברים (Sanhedrin 78 b). Dem gegenüber findet die Halacha in dem vorangehenden Verse, in welchem sonst das ולא ימות völlig überflüssig wäre, den entgegengesetzten Fall angedeutet: dass der Schlag ein solcher gewesen, ולא ימות, dass nach dem Urteil des Gerichts er nicht daran sterben würde; in einem solchen Falle ist er ebenfalls frei von Todes- oder Galutstrafe, selbst wenn der Beschädigte gleichwohl gestorben, אמדוהו לחיים ומת פטור ממיתה והייב בה׳ דברים (ebendaselbst). Dagegen: אמדוהו למיתה והיקל ממה שהיה ולאחר מכאן הכביד ומת חייב (daselbst).

על משענתו, “supporting himself on his walking cane;” the word משענת is used in the Bible in this sense in Kings II 4,29: וקח משענתי בידך, ”and take my walking cane in your hand;” [Elisha speaking to his servant Geychazi)

רק שבתו ONLY [HE SHALL PAY FOR] THE LOSS OF HIS TIME — i. e. for the interruption of his labour due to this illness. If, for instance, he cut off his hand or his foot, we regard the interruption of labour caused by this illness as though his occupation were that of a watchman in a cucumber field (which work can be done even by a man lacking a hand or a foot), for even after he has recovered from the illness he will not be able to do work which requires hands or feet, and indeed the value of his hand or his foot that was cut off the other has already paid to him as “damages” (נזק), as it is said, (v. 24) “hand for hand, foot for foot”. (Having compensated him already for loss of capacity as a wage-earner whole in body, it would not be right if this man has again to pay him for loss of time as though he were of full-earning capacity) (Bava Kamma 85b).

ורפא ירפא. and he will provide full medical services. This too can best be explained by what Maimonides wrote in the above-mentioned chapter of Hilchot Chovel Umazzik. "If the victim said to the attacker: 'pay me cash and I will look for my own doctor, etc.,' one does not take any notice of this." The ruling is derived from the wording in our verse which strongly suggests that the onus of providing medical care is on the attacker personally. This is in contrast to the payment for loss of income where the Torah spoke of the attacker "giving" the payment directly to the victim. There are many other interesting rules which have been derived from the repetition of the words ורפא ירפא.

רק שבתו יתן וגו׳. Es sind hier nur die durch das Krankenlager (ונפל למשכב) entspringenden Kosten genannt und zugleich, wie die מכילתא bemerkt, damit gesagt, dass bei tödlichem Schlage mit tödlichem Ausgange nicht auch noch Versäumnis und Heilungskosten zu Ersatz kommen (siehe V. 23). Die sofort durch die Beschädigung sich ergebenden Ersatzpflichten נזק צער בשת folgen V. 24. — רק שבתו וגו׳. Dieses רק beschränkt die Ersatzpflicht auf die durch die Verletzung als solche hervorgerufene Versäumnis und notwendig gewordene Heilung, schließt jedoch den Fall aus, wenn er durch Übertretung der ärztlichen Vorschrift die Krankheit verlängert hätte, עבר על דברי רופא (B. K. 85 a.).

שבתו, “compensation for income lost through being bedridden;” Compare use of this expression in Ruth 2,7: זה שבתה הבית מעט, “she has rested but a little.”

ורפא ירפא — Translate it as the Targum does: he shall pay the physician’s fee.

ורפא ירפא. Durch die Prägnanz dieser Wiederholung ist zugleich der irrigen Meinung begegnet, als sei der Gebrauch ärztlicher Hilfe dem von Gott geforderten Vertrauen entgegen, מכאן שנתנה רשות לרופא לרפאות (B. K. 85 a); das Gesetz setzt die Anwendung ärztlicher Hilfe voraus und fordert sie hier, und wie תוספו׳ (das.) bemerkt, nicht nur wie hier bei Verwundungen, sondern auch bei sonstigen Erkrankungen.

יתן, he (the one who inflicted the wound) has to “give,” even if the wounded person recovered without having sustained permanent damage.