Exodus 21:1 h.ואלה המשפטים NOW THESE ARE THE JUDGMENTS — Wherever אלה, “these are”, is used it cuts off (פוסל) the preceding section from that which it introduces; where, however, ואלה “and these” is used it adds something to the former subject (i. e. forms a continuation of it). So also here: “And these are the judgments (i. e. these, also)”: What is the case with the former commandments (the עשרת הדברות)? They were given at Sinai! So these, too, were given at Sinai! (Mekhilta d'Rabbi Yishmael 21:1:1; Shemot Rabbah 30:3; cf. also Midrash Tanchuma, Mishpatim 3) If this be so, why is this section dealing with the “civil laws” placed immediately after that commanding the making of the altar? To tell you that you should seat (i. e. provide quarters for) the Sanhedrin in the vicinity of the Temple.
h.אשר תשים לפניהם WHICH THOU SHALT PUT BEFORE THEM — God said to Moses: It should not enter your mind to say, “I shall teach them a section of the Torah or a single Halacha twice or three times until it will become current in their mouths exactly according to its wording (i. e. until they know the text verbatim), but I shall not take the trouble to make them understand the reason of each thing and its significance”; therefore Scripture says, אשר תשים לפניהם, “which thou shalt set before them” (cf. Genesis 34:23) — like a table fully laid before a person with everything ready for eating (Mekhilta d'Rabbi Yishmael 21:1:1).
h.לפניהם BEFORE THEM — but not before the heathens. Even if you know that in the case of a particular matter of law they will decide it in the same way as Jewish law would, do not bring it before their courts; for he who brings Israel’s law-cases before the heathens defames the Name of the Lord and pays honour to the name of the idol (in the name of which the heathen court administers justice), thereby giving it undue importance, as it is said, (Deuteronomy 32:31) “For their rock is not as our Rock that our enemies should be judges over us”, which implies: when our enemies are judges over us (i. e. if we make them judges over us) it is a testimony to the superiority of that which they reverence (their idol) (Midrash Tanchuma, Mishpatim 3).
Exodus 21:2 h.כי תקנה עבד עברי IF THOU BUYEST AN עבד עברי — This means a servant who is a Hebrew. Or perhaps this is not so, but it means a servant of a Hebrew (one who had been the servant of a Hebrew), i. e. a Canaanitish servant whom thou hast bought from an Israelite, and it is with regard to him that Scripture states “six years he shall serve”! — And if you ask, how I will then explain the commandment, (Leviticus 25:46) “and you shall leave them (the Canaanitish servants) as an inheritance for your children [and they shall serve you forever]”? then I reply, that this refers to the case of a Canaanitish servant who has been bought from a heathen; but if such a servant has been bought from an Israelite he shall go free at the end of six years! — This explanation that our text refers to a Canaanite servant will not hold, for Scripture states, (Deuteronomy 15:12) “and if thy brother an Hebrew man be sold unto thee [and serve thee six years, then in the seventh year thou shalt let him go free from thee]” — the Torah says, as it were, by using the two terms העברי and אחיך: I tell you this (that the servant shall go free in the seventh year) only with regard to thy brother! Consequently Leviticus 25:46 has to be applied to any Canaanite servant, whether bought from a Hebrew or from a heathen and עבד עברי in our text can only denote עבד שהוא עברי. (Mekhilta d'Rabbi Yishmael 21:2:2)
h.כי תקנה IF THOU BUYEST [AN HEBREW SERVANT] — This means an Hebrew servant whom thou hast bought from the hand of the court which sold him for a theft which he had committed, as it is said, (Exodus 22:2) “if he (the thief) have nothing, then shall he be sold for his theft”. Or perhaps this is not so, but Scripture is referring to the case of one who sells himself as a servant on account of his destitution, whilst he who has been sold by the court for his theft shall not go free at the end of six years! This assumption it erroneous, for when Scripture states, (Leviticus 25:39, 40) “and if thy brother that dwelleth by thee be waxen poor, and he sells himself unto thee … [he shall serve thee unto the year of jubilee]”, it is plain that in this passage there is mentioned the case of one who sells himself on account of his destitution. How then must I explain כי תקנה in this verse? Obviously as referring to him who was sold by the court (Mekhilta d'Rabbi Yishmael 21:2:1).
h.לחפשי means INTO FREEDOM (i. e. חפשי is a noun like חֹפֶשׁ but having a redundant י at the end).
Exodus 21:3 h.אם בגפו יבא IF HE CAME IN BY HIMSELF — This means that he was unmarried — as the Targum renders it אם בלחודוהי, if he came in “alone”. The term בגפו is the same as גף) בכנפו being synonymous with כנף wing, skirt) i. e. he came in only just as he was, alone, merely wrapped in his garment: so that בגפו, “in his skirt”, means “in the skirt of his garment”.
h.בגפו יצא HE SHALL GO OUT BY HIMSELF — This intimates that if he was unmarried originally (when he came in), his master is not allowed to give him against his will a Canaanitish handmaid with the object of raising slaves (Kiddushin 20a).
h.אם בעל אשה הוא IF HE BE MARRIED to an Israelite woman (Mekhilta d'Rabbi Yishmael 21:3:2),
h.ויצאה אשתו עמו then HIS WIFE SHALL GO OUT WITH HIM — But who brought her in (into the state of service) that the text has to state she shall go out? But by saying this Scripture intimates that he who acquires a Hebrew servant is bound to provide his wife and children also with food (Mekhilta d'Rabbi Yishmael 21:3:3; Kiddushin 22a).
Exodus 21:4 h.אם אדניו יתן לו אשה IF HIS LORD HAS GIVEN HIM A WIFE — From this we learn that if he has already an Israelite wife the master has the right to give him a Canaanitish handmaid with the object of raising slaves. Or perhaps this is not so, but Scripture by אשה is speaking about an Israelite woman?! Scripture, however, states: “the wife and her children shall be the master’s”, consequently the text can only be speaking of a Canaanitish woman, for a Hebrew maidservant goes free at the end of six years just as a Hebrew man-servant does — yea, even before the termination of six years she goes free if she shows symptoms of incipient puberty (cf. Rashi v. 7) — for it is said, (Deuteronomy 15:12) “[and if] thy brother, an Hebrew man, or an Hebrew woman, [be sold unto thee, and serve thee six years, then in the seventh year thou shalt let him go free from thee]”, which statement teaches you that a Hebrew woman also goes free after six years’ service (Mekhilta d'Rabbi Yishmael 21:3:1; Kiddushin 14b).
Exodus 21:5 h.את אשתי MY WIFE — the Canaanitish handmaid mentioned above.
Exodus 21:6 h.אל האלהים means to the court. He (the slave) should take counsel with his vendors (the court) because it was they who sold him to him (the master) (Mekhilta d'Rabbi Yishmael 21:6:1).
h.אל הדלת או אל המזוזה TO THE DOOR OR TO THE DOORPOST — From this statement you might think that the doorpost is also a proper thing upon which the servant’s ear may be pierced! Scripture, however, states, (Deuteronomy 15:17) “[Then thou shalt take an awl], and thrust it through his ear and into the door” — into the door but not into the doorpost. If this be so, what is the purpose of Scripture stating here “[to the door] or to the doorpost”? By this juxtaposition it only compares the door with the doorpost. What is the characteristic of the doorpost? It is something perpendicular! So, too, the door must during the act of performation be in a perpendicular position (on its hinges), not detached as, for instance, lying on the ground (Mekhilta d'Rabbi Yishmael 21:6:2; Kiddushin 22b).
h.ורצע אדניו את אזנו במרצע AND HIS LORD SHALL BORE HIS EAR THROUGH WITH THE AWL — “His ear” means his right ear. Or perhaps this is not so, but Scripture means his left ear? Scripture however uses the term אזן here and it uses אזן in another passage, thereby suggesting an analogy based upon verbal similarity; viz., here it is said “and his lord shall bore his ear (אזנו) through”, and of the leper it is said, (Leviticus 14:25) “and the priest shall put it upon the tip of the right ear (אזנו הימית) of him that is to be cleansed”. — How is it in that latter passage? It is the right ear! So here, too, it is the right ear. — What is the reason that the ear had to be pierced rather than any other limb of the servant’s body? Rabban Jochanan ben Zaccai said: That ear which heard on Mount Sinai, (Exodus 20:13) “Thou shalt not steal” and yet its owner went and stole and was therefore sold as a slave — let it be pierced! Or, in the case of him who sold himself from destitution, having committed no theft, the reason is: That ear which heard on Mount Sinai what I said, (Leviticus 25:55) “For unto Me the children Israel are servants” and yet its owner went and procured for himself another master — let it be pierced! (Mekhilta d'Rabbi Yishmael 21:6:3; Kiddushin 22b). Rabbi Simeon interpreted this verse like a jewel (i. e. giving it an ethical signification): In what respect are door and doorpost different from all other objects in the house that they should be singled out for this purpose? God, in effect, said: door and doorpost that were eye-witnesses in Egypt when I passed over the lintel and the two doorposts, freeing Israel from slavery, and when I said, (Leviticus 25:55) “For unto Me the children of Israel are servants” — servants to Me but not servants of servants (of human beings), and yet this man went and procured another master for himself — let him be pieced in their presence (i. e. let them be eye-witnesses now when this man voluntarily prolongs his state of slavery)! (Kiddushin 22b.)
h.ועבדו לעלם AND HE SHALL SERVE HIM FOR EVER — This means until the Jubilee. Or, perhaps this is not so, but לעולם means for ever as is its usual meaning? Scripture however, states, (Leviticus 25:10) “[And ye shall sanctify the fiftieth year and proclaim liberty throughout all the land unto all the inhabitants thereof] and ye shall return every man unto his family”. A comparison of these two passages tells us that a period of fifty years is termed עולם. This does not, however, imply that he has to serve him a whole period of fifty years, but that he has to serve him until the year of the Jubilee (the fiftieth year) whether this be close at hand or far ahead (Kiddushin 15a; Mekhilta d'Rabbi Yishmael 21:6:6).
Exodus 21:7 h.וכי ימכר איש את בתו לאמה AND IF A MAN SELL HIS DAUGHTER TO BE A MAIDSERVANT — The text speaks of a minor daughter (under 12 years of age). You might think that he may sell her also although she may have shown signs of incipient puberty and is no longer a minor! You must admit, however, that the à fortiori argument applies: How is it in the case of a woman who was sold at an earlier age (as a minor)? She goes free on showing signs of incipient puberty, as it is said, (v. 11) “then shall she go out free without money”, which law we explain to refer to a woman who has showed such signs during the period of slavery! Is it not the conclusion that she who is of such an age and has not yet been sold shall not be sold at all?! (Arakhin 29b, cf. Mekhilta d'Rabbi Yishmael 21:7:1).
h.לא תצא כצאת העבדים SHE SHALL NOT GO OUT AS THE MENSERVANTS DO — i. e. not under the circumstances that the Canaanitish menservants’ departure takes place, for these go free in consequence of the loss of their tooth or eye inflicted by their master; this woman, however, shall not go free because of such loss of her tooth or eye, but shall serve either six years or until the Jubilee, or until she shows signs of incipient puberty. Whichsoever of these periods comes first brings her freedom first. — He (the master), however, has to pay her the value of her eye or the value of her tooth. — Or perhaps this is not so, but, “she shall not go out as the men-servants do,” means she shall not go free as the Hebrew menservants do, viz., at the end of six years or at the Jubilee? Scripture, however, states, (Deuteronomy 15:12) And if thy brother, an Hebrew man or an Hebrew woman be sold unto thee”, comparing the Hebrew woman with the Hebrew man in regard to all reasons for departure (i. e. also with regard to her going free in the Jubilee, for that she goes free in the seventh year is stated in the text just quoted). How is it in the case of a Hebrew man? He goes free at the end of six years and at the Jubilee! So, too, does the Hebrew woman go free at the end of six years and at the Jubilee. What then do these words mean: “she shall not go out as the menservants do”? They mean: she shall not go free in consequence of the loss of one of “the tips of her limbs” (i. e. the ends of limbs that project from the body) (cf. Mishnah Negaim 6:7) inflicted by the master, as the Canaanitish servants do when they that lose “the tips of their limbs” (Mekhilta d'Rabbi Yishmael 21:3:1; Kiddushin 20a). Incidentally I may add that you might think that the Hebrew manservant shall go free in consequence of loss of one of the tips of his limbs and that only the Hebrew maidservant differs in this respect from the Canaanitish servant, since Scripture expressly specified her in the words: she shall not go out free etc. Scripture, however, states “an Hebrew man or an Hebrew woman” thereby comparing the Hebrew man with the Hebrew woman. What is the case with the Hebrew woman? She does not go free in consequence of loss of one of “the tips of her limbs”! So, too, the Hebrew man does not go free as compensation for the injury inflicted on one of “the tips of his limbs” (cf. Mekhilta d'Rabbi Yishmael 21:3:1).
Exodus 21:8 h.אם רעה בעיני אדניה IF SHE BE EVIL IN THE EYES OF HER LORD — i. e. that she did not find favour in his eyes so that he might be induced to marry her (cf. Mekhilta d'Rabbi Yishmael 21:8:1).
h.אשר לו יעדה means: [IF SHE BE EVIL IN THE EYES OF HER LORD] WHO OUGHT TO HAVE DESIGNATED HER to be his wife and ought to have married her, her purchase-money serving as the money necessary to contract a marriage (כסף קידושין). Scripture hereby implicitly tells you that it is his duty to designate her for himself, and since it makes no mention of the manner in which the marriage is to be contracted it implicitly tells you at the same time that she requires no other rite of marriage than the passing of the purchase-money from the master to her father (cf. Kiddushin 19a, Bekhorot 13a).
h.והפדה means he shall afford her the opportunity to obtain her release from service — that he himself must cooperate in respect to the amount of her ransom. And what is this opportunity he has to give her? That he allows her a deduction from her ransom corresponding to the number of years she has served in his house, as though she were only hired by him. How can this be done? Supposing he had bought her for a maneh (one hundred shekels) and she had served him two years. We say to him: “You knew that she was to go free at the end of six years; it follows then that you bought the labour of each year for one sixth of a maneh. Now she has served you two years, that is the equivalent of one-third of the maneh: accept therefore two-thirds of a maneh as a ransom and let her go free out of your house (Kiddushin 14b).
h.לעם נכרי לא ימשל למכרה means that neither the master nor the father has a right to sell her to another Jewish man (Kiddushin 18a),
h.בבגדו בה SEEING THAT HE HATH DEALT DECEITFULLY WITH HER — If “he” means the master then these words signify: if he intends to deal faithlessly with her, i. e. if he does not intend to fulfil the commandment of “Jiud” (of designating her to himself). So also the father — he has no right to sell her to another man since he has dealt faithlessly with her as a father having sold her to this man (Mekhilta d'Rabbi Yishmael 21:8:4; Kiddushin 18b).
Exodus 21:9 h.ואם לבנו יעדנה AND IF HE HATH BETROTHED HER TO HIS SON — “He” means the master (not like “he” in the previous verse where it refers both to the master and to the father). The verse teaches you that the son also may succeed to his father’s rights to betroth her to himself, if his father consents to it. Then it is not necessary for him either (just as is not obligatory for his father; cf. v. 8) to perform another act of betrothal, but he merely says to her: “You are designated for me as my wife by means of the money which your father has received from my father as your price” (Kiddushin 19a).
h.כמשפט הבנות [HE SHALL DO UNTO HER] AFTER THE MANNER OF DAUGHTERS — who may claim food, clothing and marital duty (Mekhilta d'Rabbi Yishmael 21:9:2).
Exodus 21:10 h.אם אחרת יקח לו IF HE TAKE HIM ANOTHER WIFE — besides her,
h.שארה כסותה וענתה לא יגרע HER FOOD, HER RAIMENT AND THE MARITAL DUTY SHALL HE NOT WITHHOLD — from the maidservant whom he has already designated as his wife.
h.שארה means FOOD;
h.כסותה means what the literal sense of the word is:RAIMENT;
h.ענתה means THE MARITAL DUTY (Ketuvot 47b).
Exodus 21:11 h.ואם שלש אלה לא יעשה לה means IF HE DO NOT one of THESE THREE UNTO HER. What are these three? He should designate her to himself as his wife, or to his son, or allow her a deduction from the ransom so that she may go free (Mekhilta d'Rabbi Yishmael 21:11:1). This man, however, has neither betrothed her to himself, nor to his son, and she herself does not possess the entire sum paid for her originally that she might buy herself out, therefore shall she go out free without money.
h.ויצאה חנם THEN SHALL SHE GO OUT FOR NOTHING (i. e. without making any payment) — Scripture adds in her case one more way of acquiring freedom than it provides for menservants. What is this additional way of acquiring freedom? This verse teaches you that she goes free also on account of having shown signs of incipient puberty: but she must stay with him until she reaches this stage of incipient puberty. For that she goes free if the termination of the six years happened to come before the signs of incipient puberty we have already learned, since it is said, (Deuteronomy 15:12),‘[and if thy brother], an Hebrew man, or an Hebrew woman [be sold unto thee], and serve thee six years [then in the seventh year thou shalt let him go free from thee]” (cf. Rashi v. 7). What then must be the meaning of what is stated here, “she shall go out for nothing”? That when the signs of incipient puberty appear before the six years are at end she shall go out on account of them. Or perhaps Scripture states here that she shall go free only when she has reached the intermediate stage of womenhood (בגרות, fuller development after twelve years and a half), if this stage happened to be reached before the termination of the six years! To teach this Scripture states “without money” — which would be superfluous since it has already said “she shall go out חנם” — in order to add as another date of her acquiring freedom the time of her reaching this stage of womanhood. And though it necessarily follows that she goes free an reaching the state of בגרות since her freedom is brought about even by the earlier stage of נערות yet if Scripture had not used both terms (both חנם and אין כסף), I might have said that ויצאה חנם refers to the stage of womanhood; therefore both expressions are used in order to give a disputant no opportunity to offer a different explanation (i. e. Scripture wishes to be quite clear on the point in order to preclude all possibility of misunderstanding) (Mekhilta d'Rabbi Yishmael 21:11:3; Kiddushin 4a).
Exodus 21:12 h.מכה איש ומת WHOSOEVER SMITETH A MAN SO THAT HE DIE [SHALL SURELY BE PUT TO DEATH] — Many apparently redundant verses have been written in various sections of the Torah dealing with murderers and I shall explain to the best of my ability why all these statements have been made.
h.מכה איש ומת WHOSOEVER SMITETH A MAN SO THAT HE DIE — Why is this said (how does the particular form of words used here tell us some point of law which is not contained in another text bearing upon the same subject)? Since it is said, (Leviticus 24:17) “And the man that smiteth (יכה) any person (more lit., the soul of any human being) [shall surely be put to death]”, I might have inferred that mere smiting without resultant death is subject to the death penalty. Scripture therefore states here, “Whosoever smiteth a man so that he die [shall surely be put to death]”, thus telling you that he is not punishable with death unless the stroke proves fatal. On the other hand if it had stated here, “Whosoever smiteth a man…” and it had not said there “If a man smiteth [any person]”, I might have inferred that the murderer is not guilty except if he killed “a man”; whence, however, could I know that he is subject to the death penalty if he killed a woman or a minor? Therefore Scripture states “And if [a man] smiteth any person”, thus including even a minor and a woman. Then again: if it had stated only, “Whosoever smiteth a man” I might have inferred that even a minor who smote and killed a person is punishable with death. Scripture therefore states “and if a man smiteth” — a man but not a minor. Then on the other hand, so far as concerns the statement “And if [a man] smiteth the soul of any man” it might be held that even premature births at a term of eight months are included in the term כל נפש אדם “soul of any man”, Scripture therefore states “Whosoever smiteth a man” to intimate that one is not subject to the death penalty unless he kills a viable child — one which is fitted to become a man (Mekhilta d'Rabbi Yishmael 21:12:2).
Exodus 21:13 h.ואשר לא צדה AND IF A MAN LIE NOT IN WAIT — i. e. if he did not lie in ambush for him (the person whom he killed), nor did he premeditate the blow (Makkot 7b).
h.צדה is a term denoting “lying in wait”; similarly it says, (I Samuel 24:12) “yet thou liest in wait (צדה) for my soul to take it”. It is, however, not correct to say that צדה is of the same derivation as, (Genesis 27:34) הצד ציד “he that hath hunted (הצד) venison”, for a ה has no place in the verbal forms of the term denoting “hunting beasts”. Then again, the noun form of the latter is צַיִד and that of the former צְדִיָה, whilst the participle of the verb “lying in wait” is צוֹדֶה and that of the other is צָד. I therefore say that its meaning is as the Targum gives it: “and if he did not lie in ambush for him”. Menachem ben Seruk placed it in the same section as הצד ציד (i. e. he held that the root is צד and that it has the meaning of “hunting”), but I do not agree with him. If it is to be placed in one of the sections of צד we had better place it in the same section as, (Isaiah 66:12) על צד תנשאו “ye shall be borne upon her side (צד)” and (I Samuel 20:20) “and I will shoot [three arrows] on the side thereof (צדה)”, and (Daniel 7:25) “and he shall speak towards the side of (against) the Most High”. Thus, here, the words אשד לא צדה could be taken to mean, “he did not turn aside (צִדֵּד)” to seek some side (occasion) for killing him. But there are objections even to this explanation. At any rate, even if it be connected with צד in this sense, it would still have the meaning “lying in wait”.
h.והאלהים אנה לידו means, BUT GOD GOT IT READY FOR HIS HAND. It has the same meaning as this root has in, (Psalms 91:10) “No evil shall be got ready (תאנה) for thee”; (Proverbs 12:21) “There shall no evil be got ready (תאנה) for the just”; (2 Kings 5:7) “he gets himself ready (מתאנה) for me”, i. e. he gets himself ready to discover some occasion against me.
h.והאלהים אנה לידו BUT GOD GOT IT READY FOR HIS HAND — But why should this go forth from Him (be brought about by God)? This is just what David tells us: (I Samuel 24:13) “As says the proverb of the ancient (הקדמני) “Wickedness proceededeth from the wicked”. — “The proverb of the קדמני” is the Torah, the maxim of God, Who it the “Ancient” (Whose existence preceded that) of the world. But where indeed does the Torah say, “Wickedness proceedeth from the wicked”? It says it implicitly in the verse: “But God got it ready for his hand”. For what is Scripture here speaking about? About two men, one of whom killed a person with premeditation and the other killed inadvertently, and in neither case were there witnesses to the deed who could testify about it. Consequently, the former was not put to death and the latter was not forced into banishment to a city of refuge (cf. Numbers 35:11). Now God brings them together at the same inn. He who killed with premeditation happens to sit beneath a ladder, and the other who killed inadvertently ascends the ladder and falls, when descending it, upon the man who killed with premeditation and kills him. Witnesses now being present they testify against him, so compelling him to be banished to one of the cities of refuge. The result is that he who killed inadvertently is actually banished and he who killed with premeditation actually suffers death (cf. Mekhilta d'Rabbi Yishmael 21:13:1 and Makkot 10b).
h.ושמתי לך מקום AND I WILL APPOINT THEE A PLACE — in the wilderness also — WHITHER HE SHALL FLEE — Which was the place that offered him an asylum? The camp of the Levites (Mekhilta d'Rabbi Yishmael 21:13:2; Makkot 12b).
Exodus 21:14 h.וכי יזד AND IF A MAN ACT INTENTIONALLY — Why is this stated at all (since v. 13 expressly provides a place for the murderer only if he does not lie in wait)? Since it is said, (v. 12) “Whosoever smiteth a man [so that he die shall be put to death]”, I might infer that this is so even if the victim is a heathen, and that there it included even a physician who kills a person as a result of his treatment, and a court-officer who kills a man when inflicting on him the forty lashes, and a father who beats and thereby kills his son, and a teacher who chastises his pupil and thereby kills him, and one who kills in error (שוגג, i. e. one who intended to kill a certain person but missed the mark and killed another instead — נתכוין להרוג את זה והרג את זה)! Scripture therefore states here: “if a man acts intentionally (יזיד)” — but not in error (שוגג); “against his fellowman (רעהו)” — but not against a heathen; “to slay with guile (בערמה)” — thus excluding the court-officer, the physician, and one who chastises his son or his pupil for all these though acting intentionally do not do so with guile (cf. Mekhilta d'Rabbi Yishmael 21:14:1).
h.מעם מזבחי תקחנו למות THOU SHALT TAKE HIM FROM MY ALTAR, THAT HE MAY DIE — even if he is a priest and stands at the altar intending to officiate thou shalt take him away that he die (cf. Mekhilta d'Rabbi Yishmael 21:14:4; Yoma 85a).
Exodus 21:15 h.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 d'Rabbi Yishmael 21:15:3). He is, however, not punishable with death except for a blow which causes a wound (Sanhedrin 85b).
h.אביו ואמו means either his father or his mother (Mekhilta d'Rabbi Yishmael 21:15:2).
h.מות יומת SHALL BE PUT TO DEATH — by strangulation (Mekhilta d'Rabbi Yishmael 21:15:4).
Exodus 21:16 h.וגנב איש ומכרו AND HE THAT STEALETH A MAN, AND SELLETH HIM, [AND HE BE PREVIOUSLY FOUND IN HIS HAND, HE SHALL SURELY BE PUT TO DEATH] — Why is this statement made (how does the particular form of words used here tell us some point of law which is not contained in another text bearing upon the same subject)? Since it is said, (Deuteronomy 24:7) “If a man be found stealing any of his brethren … [then that thief shall die]”, I might say that I have here only the law that a man who stole a person is punishable with death. Whence, however, do I know that this is also the case if a woman or a person whose sex is not distinguishable or a hermaphrodite (טומטום ואנדרונינוס) has stolen a person? Scripture therefore states here: “Whosoever stealeth a man and selleth him”. — And again, since Scripture states here: “He that stealeth a man [shall be put to death]”, I might say that I have here only the law that if one steals a man he is punishable with death. Whence do I know that this is also the case if he has stolen a woman? Therefore Scripture states, (Deuteronomy 24:7) “[If a man be found] stealing any person [he shall be put to death]”. Consequently both verses are necessary: what the one omits the other tells us (Mekhilta d'Rabbi Yishmael 21:16:2; Sanhedrin 85b).
h.ונמצא בידו implies that witnesses have seen him stealing and also saw him selling the person, and that he has been found in his possession before he had sold him (Mekhilta d'Rabbi Yishmael 21:16:3).
h.מות יומת HE SHALL SURELY BE PUT TO DEATH — by strangulation. Wherever the death-penalty is mentioned in Scripture without being precisely defined strangulation is intended (Mekhilta d'Rabbi Yishmael 21:16:4; Sanhedrin 84b). [It should be noted that Scripture interrupted the context by writing “Whosoever stealeth etc.” between the passages, “He that smiteth his father etc.” and “He that curseth his father etc.”, which passages ought on account of their contents to follow one after the other. I think that this gave rise to the difference of opinion found in Sanhedrin 85a where one Rabbi holds that we must put “smiting” on an equality with “cursing”, in spite of the text being interrupted by the verse וגונב, which, however, is placed between them only to teach that in some respects “smiting” and “cursing” have not the same law, — that after the death of the parents “cursing” them is punishable whilst “smiting” them is not; whilst another bolds that since the two verses have been disconnected “smiting” can by no means be put on an equality with, and have the same legal consequenses as, “cursing” (cf. Sanhedrin 85b)].
Exodus 21:17 h.ומקלל אביו ואמו WHOSOEVER CURSETH HIS FATHER OR HIS MOTHER [SHALL SURELY BE PUT TO DEATH] — Why is this stated in this particular form? Since Scripture says, (Leviticus 20:9) “For every man who execrateth his father [or his mother shall surely be put to death]” I might say that I have here only the law that a man who curseth his father or his mother is punishable with death. Whence do I know that this is also the case if a woman curseth her father or her mother? Scripture therefore states here, “Whosoever curseth father or mother” — whosoever generally — intimating that it applies to both man and woman (Mekhilta d'Rabbi Yishmael 21:17:1). But if this be so why is it said, (Leviticus 20:9). “For every man who execrateth etc.”? To exclude a minor.
h.מות יומת SHALL SURELY BE PUT TO DEATH — by stoning. And the rule is that wherever the term “his blood is upon him “is used in connection with the death penalty, “execution by stoning” is meant. The following in the passage from which this is evident (בנין אב): (Leviticus 20:27) “they shall overwhelm them with stones: their blood is upon them” — and as regards one who curses father or mother (Leviticus 20:9), Scripture indeed uses the words דמיו בו (Mekhilta d'Rabbi Yishmael 21:17:3; Sanhedrin 66a).
Exodus 21:18 h.וכי יריבן אנשים AND IF MEN QUARREL — Why is this (vv. 18, 19) stated in this particular form? Since Scripture states, (v. 24) “Eye for eye”, we learn from this only that compensation for the loss of limbs has to be paid, but we cannot infer from it that indemnity for loss of time (during which the injured has been disabled from work) and cost of medical treatment have also to be paid; consequently this section (vv. 18 and 19) is said (Mekhilta d'Rabbi Yishmael 21:18:1).
h.ונפל למשכב BUT KEEPETH HIS BED — The meaning is as the Targum gives it: ויפל לבוטלן “and he falls into inactivity”, i. e. he falls into an illness that prevents him from working.
Exodus 21:19 h.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).
h.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).
h.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).
h.ורפא ירפא — Translate it as the Targum does: he shall pay the physician’s fee.
Exodus 21:20 h.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).
h.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).
h.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).
Exodus 21:21 h.אך אם יום או יומים יעמד לא יקם NOTWITHSTANDING IF HE CONTINUE A DAY OR TWO, HE SHALL NOT BE AVENGED — If the master is free of the death penally in case of the servant remaining alive one day, is it not logical that he is free if he lives two days (what need is there for Scripture to add יומים)? But it adds it to show that the term יום is to be defined by יומים — “a day that is like two days”. And what kind of day is thereby meant? A period of twenty-four hours (a day which comprises a part of two separate days) (cf. Mekhilta d'Rabbi Yishmael 21:21:1).
h.לא יקם כי כספו הוא HE SHALL NOT BE AVENGED: FOR HE IS HIS MONEY — However, any other person who smote him (the servant) is subject to the death penalty although he lived 24 hours before dying.
Exodus 21:22 h.וכי ינצו אנשים IF MEN STRIVE with each other and one intended to strike the other and inadvertently struck the woman (Sanhedrin 79b).
h.ונגפו AND HURT [A WOMAN WITH CHILD] — The root נגף always signifies “dashing against” and “striking”. Examples are: (Psalms 91:15) “lest thou dash (תגוף) thy foot against a stone”; (Jeremiah 13:16) “and before your feet dash (יתנגפו)”; (Isaiah 8:14) “but for a stone of dashing (נגף).
h.ולא יהיה אסון AND YET THERE BE NO MISCHIEF — no further mischief with the woman (Sanhedrin 79b).
h.ענוש יענש HE SHALL SURELY BE AMERCED to pay the value of the offspring to the husband. We estimate her value according to what she is worth if she were sold as a slave in the market giving her a higher value on account of her being with child (Bava Kamma 49a).
h.ענוש יענש (lit., he shall surely be punished) — It means that they shall exact money from him. ענוש is used here in the same sense as in, (Deuteronomy 22:19) “And they shall amerce (וענשו) him an hundred shekel of silver”.
h.כאשר ישית עליו וגו׳ means, when the husband will summons him before the Court that they should place upon him a fine for this (cf. Mekhilta d'Rabbi Yishmael 21:23:7),
h.ונתן THEN HE SHALL GIVE — i. e. the man that struck the woman shall give the value of the offspring.
h.בפללים ACCORDING TO THE DECISION OF THE JUDGES (Mekhilta d'Rabbi Yishmael 21:23:9).
Exodus 21:23 h.ואם אסון יהיה AND IF THERE BE ANY FURTHER MISCHIEF — in the case of the woman,
h.ונתת נפש תחת נפש THEN THOU SHALT GIVE SOUL FOR SOUL. Our Rabbis differ as to the explanation of the word נפש the first time it occurs here. There are some who say that it actually signifies “life” (i. e. life for life), others say that it means monetary compensation but not literally life, and they say that this must be so because he who intends to kill a certain person and inadvertently kills another instead, (as is the case here), is exempt from the death penalty, and has only to pay to his heirs his value estimating this as though he were sold as a slave in the market (Sanhedrin 79a).
Exodus 21:24 h.עין תחת עין EYE FOR EYE — If one blinded the eye of his fellow-man he has to pay him the value of his eye, i. e. he pays him how much his value would be diminished if he were to be sold as a slave in the market. In the same way all other cases are to be dealt with, but it does not mean the actual cutting off of the offender’s limb — just as our Rabbis have explained in the chapter beginning with the word החובל (Bava Kamma 84a).
Exodus 21:25 h.כויה תחת כויה BURNING FOR BURNING — כויה is a burn produced by fire. Up to here (i.e. v. 24) Scripture has spoken of a bodily injury that is attended by a decrease of the market-value of the person injured; here, however, it speaks of a case in which there is no decrease of value but pain alone: if, for instance, a man burns another on his nails with a hot spit, we estimate how much a person like him (the injured) would be willing to accept for undergoing a pain like this, and such an amount the other has to pay as indemnity (Bava Kamma 84b).
h.פצע is an injury which draws blood — the accused having crushed the other’s flesh; navrure in old French In such a case it all depends upon what happens: if any decrease in his market-value is caused the other pays him an indemnity (נזק); if he is confined to his bed, he has to pay for loss of time, for medical treatment, for the shame he feels at being somewhat disfigured and for the pain he has been made to suffer. This passage, (פצע תחת פצע), is apparently redundant, but our Rabbis explained in the chapter beginning with the word החובל (Bava Kamma 85b) that Scripture intends by this statement to make one liable to pay for pain inflicted even in a case when one has already paid damages (נזק) for decrease in one’s value — that although he has paid him the value of his hand, we do not exempt him from paying also for pain inflicted, arguing thus: Since he has, so to say, purchased his hand by paying its value, he was entitled to cut if off by whatever means he pleases; but we say that he ought to have removed it by means of a poisonous drug when he would not have suffered so much pain. He, however, cut if off by means of an iron instrument and caused him great pain; therefore he is bound to pay for pain inflicted also.
h.חבורה is a wound in which the blood is congealed but does not come out, only that the flesh on that spot becomes red. The word חבורה means tache in old French Similar is, (Jeremiah 13:23) “[Can an Ethiopian change his skin] or the leopard his spots (חברברתיו)”. The Targum renders it (חבורה) by משקופי, an expression denoting “beating”, batture in old French Similarly it translates (Genesis 41:6) שדופות קדים, “blasted with the east”, by שקיפן קדום, “beaten by the east wind”. So, too, the lintel it termed “משקוף” (from the root שקף “to beat upon”), as, e. g., in the expression על המשקוף, because the door beats against it.
Exodus 21:26 h.את עין עבדו [AND IF A MAN SMITE] THE EYE OF HIS SERVANT — of a Canaanitish servant; but the Hebrew servant does not got free on account of his tooth or his eye having been knocked out by his master, as we have stated in our comment on the passage לא תצא כצאת העבדים (v. 7).
h.תחת עינו [HE SHALL LET HIM GO FREE] FOR HIS EYE’S SAKE — and similarly if he cuts off one of the twenty-four “tips of limbs” viz., the fingers, the toes, the two ears, the nose and the ראש הגויה, the membrum (cf. Mishnah Negaim 6:7). But why, since the precept is not applicable to eye and tooth alone but to twenty-four limbs, are both the eye and the tooth, mentioned? One would have stufficed! Because if only the eye were mentioned and not the tooth also, I might have said: What it the characteristic of the eye? It came into the world together with him! So, too, this law is applicable only to such limbs as came into the world together with him, but not to the tooth, for the tooth did not come into the world together with him. If, on the other hand, only the tooth had been mentioned and not the eye also, I might have said: the law applies even to a case when the master knocked out a child-slave’s tooth which grows again (more lit., which has a substitute) after a time. Therefore the eye is also mentioned to intimate that the law can be applied only when the master knocks out the tooth of his adult slave which, like the eye, does not grow again. (Kiddushin 24b).
Exodus 21:28 h.וכי יגח שור AND IF AN OX THRUST — This law applies to an ox as well to any other cattle, wild beast or fowl, but Scripture mentions the ox, because it speaks of what usually occurs (Bava Kamma 54b).
h.ולא יאכל את בשרו AND ITS FLESH SHALL NOT BE EATEN — From what is implied in the words “the ox shall surely be stoned” do I not know that it becomes carrion, and carrion of course is prohibited to be eaten? Why then is it stated, “and its flesh shall not be eaten”? It is to intimate that even if he slaughtered the animal according to regulation after sentence of stoning has been pronounced but before it had been carried out it is forbidden to be eaten. Whence may it be proved that under such circumstances it is prohibited to derive any other benefit from it? Scripture therefore states: “and the owner of the ox is נקי” — it is a phrase such as a man uses to his fellow: that man there has gone away “empty” (נקי) of all his property (he has nothing whatever left), and he has not the slightest benefit of it. This is how the Halachic Midrash explains it (Bava Kamma 41a). However, the real sense of ובעל השור נקי, is what it literally means: the owner of the ox shall be guiltless. Because Scripture says with reference to the מועד (an ox which inflicted injury three times in succession, and about which its owner must therefore be regarded as forewarned), (v. 29) “and his owner also shall be put to death”, it was forced to state with regard to the תם (a hitherto innocuous animal, having inflicted an injury for the first time) “the owner of the ox shall be guiltless”.
Exodus 21:29 h.מתמל שלשם [BUT IF THE OX HAS BEEN WONT TO THRUST] YESTERDAY AND BEFORE YESTERDAY — Here you have including the present occasion the three times an ox must gore before it can be declared a מועד (Bava Kamma 23b).
h.והועד בבעליו AND IT HATH BEEN TESTIFIED TO HIS OWNER — הועד (from the root עוד) is an expression for warning through witnesses (Bava Kamma 24a), as in, (Genesis 43:3) “the man hath solemnly forewarned (הָעֵד הַעִד) us”.
h.והמית איש וגו׳ BUT HE HATH PUT TO DEATH A MAN [OR WOMAN] — Since it states, (v. 28) “If an ox gore (יגח) [a man or a woman, that he die]” I might say that I have only the law dealing with the case that it kills by pushing him with the horn (the root נגח being mainly used of thrusting with the horn, cf. e.g., Deuteronomy 33:17) but whence can the law be derived that it applies also to the case where it kills by biting, thrusting, or kicking? Scripture therefore states “he hath put to death [a man or a woman]” thus intimating that so long as death is caused by the animal it is liable to stoning.
h.וגם בעליו יומת AND HIS OWNER ALSO SHALL BE PUT TO DEATH by a visitation of God. You might perhaps think he shall be punished by human agency (the judges)! Scripture, however, states, (Numbers 35:21) “he that smote him (a human being) shall surely be put to death; for he is a murderer” — the force of these last words is to intimate that for a murder committed by himself you shall put him to death (i. e. he suffers death by human agency as is the law regarding a murderer), but you shall not put him to death on account of a murder committed by his ox; this must be left to God (Sanhedrin 15b; cf. also Mekhilta d'Rabbi Yishmael 21:29:8).
Exodus 21:30 h.אם כפר יושת עליו WHEN THERE BE SET ON HIM A RANSOM — This אם is not conditional (i. e. it does not mean “if” the heirs feel inclined to set on him a ransom) but it has the same meaning as in (Exodus 22:24) “When (אם) thou lendest money” where it has the meaning of אשר, “when” (for it is a duty to lend money to the poor and it is not optional). It is the law regarding him that the court should set on him a ransom.
h.ונתן פדיון נפשו HE SHALL GIVE THE RANSOM OF HIS SOUL — the value of the injured person; this is the view of R. Ishmael, R. Akiba, however, says that it means the value of the person who caused the injury (Mekhilta d'Rabbi Yishmael 21:30).
Exodus 21:31 h.או בן ינח WHETHER HE HAVE THRUST A SON — a son who is a minor;
h.או בת יגח OR HAVE THRUST A DAUGHTER, who is a minor. Since it states, (v. 29) “and hath put to death a man or a woman”, one might think that the owner is liable only for the death of adult persons, Scripture therefore states, “whether he have thrust a son etc.” to make him liable for the death of minors equally as for that of adults (Mekhilta d'Rabbi Yishmael 21:31:1).
Exodus 21:32 h.אם עבד או אמה IF [AN OX SHALL THRUST] A MANSERVANT OR A MAIDSERVANT — Canaanitish servants (Mekhilta d'Rabbi Yishmael 21:32:1).
h.שלשים שקלים יתן HE SHALL GIVE THIRTY SHEKELS — This is the enactment of Scripture (and no reason is given) — the indemnity shall be thirty shekels whether the slave was worth a thousand zuz or was worth no more than one denar. A shekel weighs four gold coins, making half an ounce according to the correct weight of Cologne.
Exodus 21:33 h.וכי יפתח איש בור AND IF A MAN SHALL OPEN A PIT which was covered over, and he now uncovered it.
h.או כי יכרה OR IF A MAN SHALL DIG [A PIT] — Why is this stated? If he becomes liable for opening one that already exists how much the more is he liable for digging a new one! However, it does not mean that he digs a pit from beginning to end but it is intended to include in this law a person who digs after another has dug (i. e. who deepens to a height of ten handbreaths a pit which another has already excavated to a depth less than this. Before he did this an animal which fell into the pit was unlikely to kill itself; now, however, such a fall may prove fatal) — that such a one alone becomes liable (cf. Bava Kamma 51a).
h.ולא יכסנו AND SHALL NOT COVER IT — if, however, he did cover it, though he did not fill it in with earth” he is not liable (Bava Kamma 50a). Scripture speaks of one who excavates a pit in a public thoroughfare (cf. Bava Kamma 49b).
h.שור או חמור AN OX OR AN ASS — This is the law also with respect to all cattle and beasts, because wherever the Torah prescribes something with regard to “ox or ass”, we derive it (the fact that it applies to all cattle and beasts) on the grounds of the verbal similarity of שור in the text in question with שור which occurs in the law prescribing the Sabbath rest, for — with regard to the latter — it is stated, (Exodus 23:12) “that thine ox and thine ass may rest”. Now how is it in the latter case? We know that all cattle and beasts are to be treated in this respect as the “ox”, because in another passage referring to Sabbath (Deuteronomy 5:14) it is expressly said “[thy ox and thy ass] and all thy cattle”! So here, too, all cattle and beasts are to be treated as the ox. The only reason why ox and ass are alone mentioned is to imply: “an ox” — but not a man, “an ass” — but not vessels (Bava Kamma 53b).
Exodus 21:34 h.בעל הבור THE OWNER OF THE PIT [SHALL PAY FOR IT] — This means the one who occasioned the damage. Although the pit was not his, — for he dug it in the public thoroughfare, — Scripture regards him as its “owner” (בעל הבור) in so far that he becomes responsible for the damage caused by it.
h.כסף ישיב לבעליו [THE OWNER OF THE PIT SHALL PAY FOR IT] AND RESTORE MONEY UNTO THE OWNER OF THEM — The word ישיב is apparently redundant; it would have sufficed to state ישלם כסף לבעליו but it is added to include as legal tender in this case even bran (i. e. the restitution need not be money so long as he actually restores something of money-value). (Bava Kamma 7a).
h.והמת יהיה לו AND THE DEAD BEAST SHALL BELONG TO HIM — to him who has suffered the loss. We assess the value of the carcass and he (the claimant) takes it at this value in part payment, and the man who caused the damage pays him in addition to this as much as will make up the whole loss he has suffered (Bava Kamma 10b).
Exodus 21:35 h.וכי יגף AND IF [AN OX] HURT [AN OX OF HIS FELLOW-MAN] — יגף means to thrust; whether it injures by horns or the whole body, or whether it kicks with its foot or bites it with its teeth, all are included in the term נגף, for נגף means nothing else than מכה — the impact of one thing upon another (Mekhilta d'Rabbi Yishmael 21:35:1).
h.שור איש means שור של איש THE OX OF A MAN (i. e. שור is in construct state to the word איש).
h.ומכרו את השור וגו׳ THEN THEY SHALL SELL THE LIVE ONE — Scripture is speaking of a case when both animals are of the same value: an ox of the value of 200 zuz that killed another also valued at 200 zuz. Then whether the carcass is worth much or whether it is worth little, as soon as one takes one-half of the living animal and one-half of the dead, and the other takes one-half of the living animal and one-half of the dead, it follows that each of them suffers the loss of half the damage which the death of the animal has caused. Scripture teaches us that the תם (which is the animal spoken of here — one that inflicted injury for the first time) always pays half damages. For from what it states about animals of the same value you may gather the rule for such as are of different values — that the law regarding the תם is for its owner to pay half damages, neither more nor less. Or perhaps you might say that also of animals which were of unequal value when living Scripture states that both of them must be halved! But if you say this, you will find that sometimes the man who occasions the damage may benefit considerably — namely, when the carcass is worth when sold unto heathens much more than the value of the ox which inflicted the injury. And you must admit that it is impossible that Scripture should say that the man who occasioned the damage should benefit by it. Or it may sometimes happen that the claimant will receive much more than the value of the whole damage — namely, when one-half of the value of the defendant’s ox is worth more than the whole value of the claimant’s ox. Consequently if you still maintain this (that the animals are to be halved even when they are of different value), the result may well be that the case of the תם is more severely dealt with than that of the מועד (when the claimant gets full damages — but not more). You must therefore needs admit that Scripture speaks here only of animals that are of equal value, and that it teaches you that the owner of a תם has to pay half damages; and from what is said in respect to animals of equal value you may derive the law in respect of such as are of different values — that in any case when a person is paid half the damages caused to him we value the carcass for him (the claimant); and as regards the depreciation in value caused by its death — he must accept a sum equal to half of that depreciation together with the carcass and has to be satisfied (Hebrew: and goes his way). But why does Scripture use this mode of expression and does not simply say: he (the owner of the תם) shall pay the half? To teach you by the way that the תם pays only to the extent of its own value (Hebrew: from what can be obtained for its body). So in case it gores another and itself dies, the claimant gets at most the carcass of the ox that caused the damage, and if that does not amount to one-half of the damage, he has to suffer the loss. Or take another case: an ox of the value of one maneh (200 zuz) that gored an ox of the value of 500 zuz (so that the loss is more than the whole value of the ox that caused it). The claimant still does not get more than the living ox; and the defendant is not bound to make up the deficiency from his own money, for the תם is not responsible to such an extent as to make its owner liable to pay from his own property) (Bava Kamma 16b).
Exodus 21:36 h.או נודע means, OR it was not a תם but IT IS KNOWN THAT THE OX WAS WONT TO THRUST to-day yesterday and the day before yesterday — thus you have the three acts of goring required to make it a שלם ישלם שור (Bava Kamma 23b)
h..מועד HE SHALL SURELY PAY AN OX [FOR THE OX] — i. e. the full damage.
h.והמת יהיה לו AND THE DEAD SHALL BELONG TO HIM — to the claimant (Bava Kamma 23b) as part of this full payment. In addition to it the defendant has to complete the amount until the claimant has been paid for his entire loss.
Exodus 21:37 h.חמשה בקר וגו׳ [HE SHALL PAY] FIVE OF THE HERD etc. — Rabban Jochanan ben Zaccai said, “The Omnipresent has much consideration for the honour of His creatures: when an ox — an animal that can walk by itself — has been stolen and sold or slaughtered, in which case the thief had not to degrade himself by carrying it on his shoulder, he has to pay fivefold restitution. In the case of a lamb, however, which he had to carry on his shoulder, he has to pay only the fourfold, because he was forced to degrade himself by carrying it”. Rabbi Meir said, “Come and see how great is the virtue of labour: In the case of the theft of an ox which he (the thief) withdrew from its labour, thereby causing a loss to its owner, he has to repay five oxen, in the case of a lamb which he has not withdrawn from its labour — only four (Bava Kamma 79b).
h.תחת השור … תחת השה FOR THE OX … FOR THE LAMB — The text repeats the words שור and שה unnecessarily (for it would have sufficed to state כי יגנוב איש שור וטבחו או מכרו חמשה בקר ישלם תחתיו וארבע הצאן תחת השה “And if a man shall steal an ox … then he shall pay five of the herd for it, or four sheep in place of the lamb”) to tell you that the rule providing for four-fold and five-fold restitution applies solely to the ox and the lamb (and not to any other cattle) (Bava Kamma 67b)