Комментарий к Берешит 44:10

גם עתה כדבריכם IT WERE RIGHT TO BE ACCORDING TO YOUR WORDS — Indeed, this is only right: in very truth it should be according to your words since you are all guilty in this matter. Because when there are ten men and stolen property is found in possession of one of them, all of them are involved in the theft. I, however, shall deal with you within the line of strict justice (i.e. more equitably) and only אשר ימצא אתו יהיה לי עבד HE WITH WHOM IT IS FOUND SHALL BE MY BONDMAN (Genesis Rabbah 92:8).

ALSO NOW IT WERE RIGHT TO BE ACCORDING TO YOUR WORDS. “Indeed, this is only right. Verily it should be according to your words since you are all guilty in this matter. When there are ten men and a stolen thing is found in the possession of one of them, all of them are arrested. I, however, will deal with you inside the bounds [of justice, that is, I will deal with you more leniently]. He with whom it shall be found, he alone shall be my servant.” Thus the language of Rashi.
But according to this interpretation, the words, gam atah (also now), do not fit in well.²²⁴For since Rashi writes that this is a din emeth (a true decision), how can the words gam atah (also now) fit into the context since these words suggest that now a new law is established. (Aboab.) See also my Hebrew commentary, p. 238. Perhaps Rashi is saying: “Also now, when according to your words, it is the law [that all be held guilty in the matter], he with whom it shall be found shall be my servant.”²²⁵Thus, Joseph’s verdict is not at all related to the established law concerning theft, but is primarily designed to bespeak his kindness in keeping only Benjamin as a servant while the rest go completely free. Hence the words gam atah (also now) apply since this is a principle newly set forth. But this can hardly be correct since Joseph said, Far be it from me to do so.²²⁶Verse 1 here. This shows that it is not the law that they all be held responsible for the theft. It is for this reason that he said: “Far be it from me, for I am the judge of the whole land, and far be it from me to do you wrong,” for all ten men are not guilty if a stolen article is found in the possession of one of them unless they all planned the theft and were united in going to steal it. Then, if one of them took it with the knowledge of all, they are all liable.
The correct interpretation would seem to be that at first he accused them all: Why have you repaid evil for good?²²⁷Verse 4 here. You have done evil in so doing.²²⁸Verse 5 here. And they freed themselves of the accusation by saying, “With whomsoever of thy servants it be found, let him die, since he is the thief, and we also, who are guiltless of the theft, will be my lord’s servants.²²⁹Verse 9 here. Thus their opinion was that the thief, in whose possession it might be found, was the only one with knowledge of the theft, for if they were all involved in the theft, why should that one alone be put to death while the rest remain alive. In that case, all of them should be put to death or all of them should become servants, for they all bear equal legal responsibility. Rather, they pleaded that the others had no knowledge of the theft. They agreed that they should become servants as a self-punishment only. This is why Joseph said to them, “Gam atah (also now) that you are assembled and are together,²³⁰The fact that you are now all found together suggests that you all had a hand in the stealing. it were right to be according to your words; nevertheless, he with whom it is found, he alone is the thief, and he alone is deserving of punishment, and he will be a servant to me for I desire his services more than his death. But you shall be guiltless, for perhaps you did not know about the theft, as you say.”
Perhaps the meaning of the words kein hu (it were right) is that “it shall be so,” meaning, “also now that the law is not so,²³¹For you said that only as an act of self-punishment you agree to be servants. That is not the law, for since there is a suspicion upon all of you, you should be arrested until the matter is clarified. Yet so shall it be according to your words, and ye shall be guiltless. according to your words so shall it be.” A similar case is the verse, And she said: According to your words, ‘kein hu,’ and she sent them away, and they departed,²³²Joshua 2:21. which means, “so shall it be.” This is the correct interpretation in my opinion. This conforms to the words of our Rabbis in Bereshith Rabbah,²³³92:8. who say, “If ten people are discovered with a stolen article, are they not all to be imprisoned? I will not do so, but he with whom it is found shall be my servant.” They thus intended to interpret the verse as I have explained it,²³⁴That the brothers were denying that under the law they were all responsible. It was only as a form of self-punishment that they agreed to be servants. Joseph, however, argued that since suspicion does fall upon them they should be imprisoned until their innocence is established. and not in accordance with the words of Rashi.²³⁵That the brothers agreed that under the law they all could be held responsible.
We might correct the interpretation in accordance with the opinion of the Rabbi [Rashi] by stating that Joseph said: “Far be it from me to do this and deal more harshly with you than my house-steward, who freed you at the outset by saying to you, but ye shall be guiltless,²³⁶Verse 10 here. for I will confirm the words of my servant, and the counsel of my messenger will I perform.”²³⁷See Isaiah 44:26.
Vayigash

כדבריכם כן הוא, you are truly all partners in all that you do. It is the custom of merchants to always attribute blame to one another. But I am not willing to go along; only the one in whose bag the goblet was found הוא יהיה לי עבד, he alone will be my slave.

גם עתה כדבריכם כן הוא. Even though now, in this instance the argument you cite is logical, correct, but in this special circumstance, the goblet in question belonging to the king, a man who has treated you well by giving back all your money in your sacks, the fact is that האיש אש אתו ימצא הגביע הוא יהיה לי עבד, and not all of you. Even this individual will not be sentenced to death as would be required if we applied the law in all its strictness.

ויאמר גם עתה בדבריכם כן הוא, He said: "also now I accept your words, etc." What does the word גם contribute to the legal aspects of what was taking place? Besides, what did the adjutant mean when he said: "it is as your words?" It appears that he did not accept their words; the brothers had decreed death on the thief whereas the adjutant had decreed only slavery!

ויאמר, גם עתה כדבריכם כן הוא, he meant that although legally speaking the law is as you say, I will be more lenient with you, etc.

גם עתה כדבריכם כן הוא, “I also accept your arguments now.” Rashi explains this phrase to mean that although, according to logic, the brothers’ argument makes sense, he, Joseph, would make an additional concession by holding only Binyamin responsible. Nachmanides writes about this that the words:גם עתה, “now also,” are not compatible with Rashi’s commentary. He therefore explains that although, seeing that the brothers had said that they knew nothing about the theft of the goblet, even assuming that Binyamin had stolen it, that he would have accepted their argument and not held them responsible at all. However, seeing they had already tied their fate to that of their younger brother, they had, in effect, punished themselves by volunteering to be slaves to Joseph. If, as they said they knew nothing about all this, they should be free to go, whereas Binyamin is guilty of death. If they did have knowledge of all this, why should only Binyamin be punished by death and not they also? Their suggestion that no one should be punished by death, and they should all become slaves certainly was inappropriate. The words גם עתה refer to the brothers’ original statement that did make sense, namely that the person in whose possession the goblet would be found would deserve to die. The fact that they now changed their opinion about who should be punished and how, only lent support to the suspicion that they had all known about the theft of the goblet. He would therefore do them a favour by reverting to their original suggestion that only the person with whom the goblet had been found would be considered guilty, and would suffer the penalty his own brothers had decreed for him. However, he would not insist on the penalty in full, and be satisfied to keep Binyamin as a slave. Joseph was not interested in the thief dying, but in his making restitution for his thievery, something that would best be achieved through his labour as a slave for Joseph. Alternatively, the words כן הוא mean the same as כן יהיה, it shall be thus, i.e. the judgment will not be in accordance with your proposal. Some commentators understand the words as a question, expressing surprise. He meant: do you really think that you can get away with a perversion of justice as you now suggest?” “No way, but….” Another approach goes as follows: “I accept your argument that you have proved your honesty by having brought back the money you had found in your sacks. But this argument applies only to nine of you. Binyamin never brought back any money, seeing he had not been here before; neither did Shimon, seeing that he had never left Egypt before. In light of this, I will detain the one with whom the goblet has been found, seeing he had no record of proving his honesty.

גם עתה כדבריכם כן הוא, “also now I accept your words.” He meant that according to Egyptian law all of the brothers were considered guilty if one of them had stolen. However, he would not apply the full severity of the law and would be content with punishing only the person in whose sack the goblet would be found.

This, too, would be only just. Truly it should be as you say... Rashi means as follows: “Your words are now also correct,” does not relate back to [their statement of,] “He among your servants with whom it is found, he shall die.” This is because, “When there are ten persons and a stolen item is found in the possession of one of them,” they all deserve equal punishment [by the king’s law], whatever the punishment may be. That is why Rashi says, “You are all responsible.” Although they had said, “He shall die,” in their bitterness they exaggerated. [Rashi elaborated because] we might think that, “He... shall die,” is what is intended by, “Your words are now also correct.” But this is not so, for [in v. 16, when] the brothers [speak to Yoseif himself, they] do not say this, [that he shall die. Perforce, it was an exaggeration]. Rashi added, “Not according to the strict letter of the law; only he with whom it was found shall be my slave,” because it was not strictly according to the law [to punish only one of them].

Auch jetzt ist es noch vollständig so, wie ihr sagt. Ihr habt vollständig Recht. Es ist eine reine Unmöglichkeit, dass der, welcher freiwillig Geld wiederbringt, ein Spitzbube sei. Allein einer ist ja da, der diese Probe noch nicht geliefert hat. Er wusste ja, dass der Becher bei Benjamin war.

'גם עתה כדבריכם כן הוא וגו, “also now I accept what you have said;” this appears very difficult, as the brothers had suggested that the thief if found among them should be given the death penalty, whereas they as relatives of the thief would become slaves were prepared to become slaves. Joseph’s messenger had only been concerned with punishing the thief himself, and even at that not to execute him. We must therefore interpret the messenger’s words as meaning that he accepted the brothers’ suggested punishment for themselves, if and when one of them were to be found guilty. Joseph’s messenger said that he would be more generous with them than they would be with themselves if it turned out that they were not guilty. An alternate interpretation of the line quoted: “I accept what you said concerning that you had already proved your innocence, and that you are not thieves. However, this applies only to nine of you. Neither Binyamin nor Shimon had brought back any money.” Binyamin had not been in Egypt, ad Shimon had not returned to the land of Canaan, having been in jail during your absence. He must therefore search the sacks of these two.

כדבריכם כן הוא, “you are quite correct, i.e. the thief will be guilty of the death penalty. You yourselves have condemned him as such. However, I do not wish to apply such a harsh penalty. Seeing that only one of you is guilty, the others will not become slaves. The thief will, however, become a slave as his penalty. This was the accepted penalty for stealing in those days before the Torah had been given. Compare Genesis 43,18, where the brothers had been afraid of just that when thinking they had been framed by having had their money restored to them. After the Torah was given, the standard penalty for stealing was for the thief to pay compensation worth twice the value of the stolen object. (Exodus 22,2) If he did not have the money to pay such compensation he would become indentured as a servant for 6 years, the victim being paid by the court from the monies it had received from the indentured thief’s owner.

ואתם תהיו נקיים. You will both be free from becoming slaves or any other form of punishment.

אשר ימצא, the one in whose possession, etc. Other commentators interpret the words כדבריכם כן הוא to mean that your argument that you are honest as proven by your bringing back the money you found is acceptable, [but it does not apply to either Shimon or Binyamin, neither of whom have brought back any money.] but if the goblet is found in someone’s sack, that individual will have to be my master’s slave. I will however, not hold you responsible by association.

Perhaps the adjutant replied to the argument that they had proven their honesty by returning money they had found and were legally entitled to keep. The adjutant admitted that those who had previously returned to Canaan had indeed proven that they should not be accused of theft. Neither Shimon nor Benjamin had proven this, however.. Shimon had been in jail and Benjamin had not been in Egypt previously. The adjutant therefore reduced his suspicion from a collective one to one addressed to either Shimon or Benjamin. As to the death penalty, he was going to keep the thief as a slave until such time as it would please his master to execute him.

יהיה לי עבד, “shall be a slave for me.” This is very strange, as the man saying these words was only a servant of Joseph himself. He should have said: “will be a servant to my master.” Perhaps we can understand this wording as the servant (messenger) said that seeing he is the messenger, he is responsible to his master for anything that he has not carried out correctly in his mission. Therefore, in the first instance, the brothers are his responsibility to deal with. Legally, therefore, the guilty brother becomes his slave initially.

Alternatively, the adjutant argued that the brothers were quite wrong legally. The death penalty is administered only to thieves who have been convicted by the testimony of witnesses who have observed the thief commit the crime. In this instance even the discovery of the stolen object would only be circumstantial evidence. The thief would therefore be guilty by reason of the local legal system, not by G'd's decree.

ואתם תהיו נקיים, "whereas [the rest of you] will be innocent." You retain your presumption of innocence; the fact that the goblet will be found amongst one of you does not make you an accessory unless there was evidence that you were aware of the theft and had condoned it.