Messianic Education Trust
    Mishpatim  
(Exodus 21:1 - 24:18)

Shemot/Exodus 21:33   And if a man opens a cistern or if a man digs a cistern and will not cover it ...


This text forms the second of a three-part block of legislation dealing with the damages caused by of affecting animals, typically an ox although the principles established apply equally to other domestic animals, which is laid out in eleven consecutive verses of Shemot chapter 21. The first block (vv. 28-32) deals with situations where the animal causes harm to a person; the second (vv. 33-34) where a person causes harm to an animal; and the third (vv. 35-36) where one animal causes harm to another. The full text of this second part is: "When a man opens a pit, or digs a pit and does not cover it, and an ox or an ass falls into it, the one responsible for the pit must make restitution; he shall pay the price to the owner, but shall keep the dead animal" (Shemot 21:33-34, NJPS).

The word is the plene or long form of and comes from the root , to engrave or to expound or explain (Davidson). It is closely allied to the word , which means a well, cistern or pit and is perhaps best known in the name B'eer Sheva, still in use for a town in southern Israel today, the well of the oath or the well of seven (B'resheet 21:29-32). has an overlapping set of meanings: cistern, pit, dungeon or prison, grave or sepulchre (Davidson) and is translated here as 'cistern' to reflect the deliberate nature of the item. Pits may occur naturally, but cisterns are nearly always dug by someone.

In the What Is ...

The Mekhilta: The earliest known halakhic midrash or commentary on (parts of) the book of Exodus; formally named for Rabbi Ishmael and therefore set around 100-135CE, it was redacted some years after his time; quoted many times in the Bavli Talmud as "Rabbi Ishmael taught ..."
Mekhilta, the ancient rabbis asked why the wording of this text is said in this way and how it relates to the first and last cases in the block. Their first point is that an ox is owned by a person, as is a pit. Does that make the owner liable in all cases? But, they say, there is a difference an ox and a pit: the ox can go around and cause damage, while a pit goes nowhere, it is passive. So this isn't a matter of ownership, it is the one who opens or digs the pit who is liable. Or is it? No, they say, "It is not the opening or the digging which matters. What does matter is its being covered." A pit may be uncovered and covered multiple times throughout the day by someone who is working in or attending the pit. It is only a hazard if it is left uncovered and then it is the person who so leaves it that is liable for any damage caused to animals should they fall into it because it isn't covered. They add the further point that not covering the pit includes only covering it with a flimsy or inadequate covering that might as well not be there as far as animals are concerned. Rabbi Who Is ...

Hirsch: Rabbi Samson Raphael Hirsch (1808-1888 CE), German rabbi, author and educator; staunch opponent of the Reform movement in Germany and one of the fathers of Orthodox Judaism
Hirsch agrees, commenting that because the text mentions two ways in which the hazard may arise, "it is quite evident that it is not as possessor but as causer of the danger that he is to be made responsible."

So walking through the logic in its three steps with Who Is ...

Rashi: Rabbi Shlomo Yitzchaki (1040-1105 CE), French rabbi who wrote commentaries on the Torah, the Prophets and the Talmud, lived in Troyes where he founded a yeshiva in 1067; focuses on the plain meaning (p'shat) of the text, although sometimes quite cryptic in his brevity
Rashi, first: "if a man opens a cistern" - which was covered, and he uncovered it, he is liable regardless of whether he owns the cistern or not. Second, "or if a man digs" - Why was this stated? If one is liable for opening a cistern which has already been dug, will he not be all the more so for digging one? But this covers the case where a man digs a cistern deeper than it was originally dug, so that the last one is liable. Like war memorials, the person or authority that last officially touches it - that is, performs maintenance on it - remains liable for its continued upkeep. Thirdly, "and will not cover it" - if he covers it, he is exempt [of liability]. The Sages of the Talmud assert that this only applies to one who digs a hole in the public domain or opens his private domain to the public. If a man digs a cistern on his own private property which remains private, then someone else's animal should not be there to fall into it! (b. Bava Kama 49b).

As Nahum Sarna explains, "the presumption is that the pit or cistern was located on public property or that there was unobstructed access to it from public property. Behavioural norms would expect the individual to exercise reasonable prudence and not leave such hazards exposed. For this act of omission, which constitutes negligence, the offender must make restitution." Now we are down to the nub of it. In just the same way that a person who injures another person, or allows their animal to injure another person, is liable for compensation, so the person who fails to cover a pit that an animal is injured or killed by falling into it, is liable to the animal's owner for compensation. Leaving an open hazard unattended constitutes negligence. Terence Fretheim affirms that "Words of sorrow or regret are not sufficient in righting these matters; it is a matter of payment in money or kind (and in some cases, doubly so). Such cases are considered to be of such consequence that G-d Himself enters into judgements (see Shemot 22:9)."1

Walter Brueggemann takes the argument one stage further, both generalising it and applying to our modern age: "It requires no great imagination to see that, in a post-industrial society, pre-occupation with one's own well-being and profit can lead to neglect of the neighbour's well-being. Thus the 'ox that gored' might be understood as water rights, careless chemical pollution, or the introduction of technical 'advances' (i.e., smarter oxen) that endanger the environment and destroy another person's context for a good life."2 Examples of 'inadequate covering' might be lax or faulty security around on-line databases containing the personal or financial data of clients or customers, or a failure to properly obfuscate the social identities of those making comments harvested from Twitter or facebook. In all these situations, statute may prescribe certain remedies for victims or punishments for those deemed to have broken the law, if a conviction can be obtained in court. Most offences will cause much emotional stress, compromised health and financial loss that cannot be addressed either by arbitrary monetary compensation or by seeing someone sent to prison.

Yeshua correctly identified the magnitude of the problem when he told the disciples, "It is inevitable that stumbling blocks should come, but woe to him through whom they come! It would be better for him if a millstone were hung around his neck and he were thrown into the sea, than that he should cause one of these little ones to stumble." (Luke 17:1-2, NASB). The term 'little ones; here does not necessarily mean children, although that is the context of Matthew's report of Yeshua's words. Both Matthew and Mark qualify "little ones" to say "these little ones who believe" (Matthew 18:6, Mark 9:42, NASB); these are both children and adults who believe in Yeshua. How can they be caused to stumble? Firstly, by bad example: seeing those older than them in the L-rd, those in positions of authority, breaking Yeshua's commandments and instructions, displaying bad attitudes, talking down the Bible, expressing doubt or even cynicism about Yeshua; and being drawn into doing so themselves. Secondly, by bad teaching: being taught a liberal (or heretical) view of the Bible, being taught to disregard, ignore or despise the commandments, hearing people - particularly scholars and pastors, those supposedly entrusted with guarding and feeding the flock - twist and change the meaning of words to suit their own preferences and practices. Thirdly, by isolation, by being left alone or ignored, by having their questions ridiculed or scoffed at, by a failure to come alongside and offer encouragement.

Rav Sha'ul warns Timothy to be careful because "some men, straying from these things, have turned aside to fruitless discussion, wanting to be teachers of the Law, even though they do not understand either what they are saying or the matters about which they make confident assertions" (1 Timothy 1:6-7, NASB). James counsels against too many people becoming teachers, "knowing that as such we shall incur a stricter judgment" (James 3:1, NASB). Equally, some are clearly gifted and called by G-d to be teachers among His people, encouraging and building up the Body of Messiah in faith and knowledge of G-d and His ways and Sha'ul urges the Thessalonians: "we request of you, brethren, that you appreciate those who diligently labor among you, and have charge over you in the L-rd and give you instruction, and that you esteem them very highly in love because of their work" (1 Thessalonians 5:12-13, NASB). Those who do carry the burden of scholarship, research and teaching should be appropriately honoured and supported in their work.

Returning to Moshe's metaphor, we can see that we each bear a responsibility for our behaviour and how we are seen by others, how our words and conduct - our lessons, if we teach - affect or shape others, giving them permission to walk on firm ground or to fall into a cistern. More, we are also responsible for covering pits or cisterns that we encounter in a solid and workman-like manner so that those who follow us and may not be taking as much care as we have done, will not fall into situations that might hurt or damage them. Scripture is clear that those who teach - and that includes all of us, by our example, by our words and attitudes, as parents, guardians or in any official position - carry a responsibility and that defaulting on that incurs a liability that requires recompense beyond simply words and a shrugging of the shoulders. As the older commentators explains, G-d takes these matters seriously enough to get involved in the judgement himself. May we all be good stewards, good teachers and good neighbours so that no-one need fall into a pit.

1. - Terence E. Fretheim, Exodus Interpretation, (Louisville, KY: Westminster John Knox Press, 2010), page 250.

2. - Walter Brueggemann, "Exodus," in The New Interpreter's Bible Commentary, Vol I, edited by Leander E. Keck, (Nashville, TN: Abingdon Press, 2015), page 434.

Further Study: Matthew 18:10-14; Hebrew 13:17

Application: Have you dug any holes or cisterns into which others have fallen? What restitution have you offered and how can you prevent such a situation occurring again while still continuing to carry out the calling and function you have been given?

USerComment(03Feb19 08:18, Ann, I like the way you expand the thought behind the law. So often these passages can be passed over as irrelevant to today's world but you have carefully and logically brought it into 2019!)

Buy your own copy of the Drash Book for Exodus/Shemot now at Amazon US or Amazon UK.

© Jonathan Allen, 2019



Messianic Trust Home Page Join Weekly Email More Weekly Drashot
Last Week Support the work of producing this weekly commentary
Next Week
Last Year - 5778 Scripture Index


Your turn - what do you think of the ideas in this drash ?

Name Display my name ? Yes No
Email Your email address is kept private. Our editor needs it in case we have a question about your comments.
Comments
Like most print and online magazines, we reserve the right to edit or publish only those comments we feel are edifying in tone and content.