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D'var Torah (weekly sermon) from Parshat Mishpatim, Sat. Feb. 18th

Updated: Feb 19, 2023

Following the Revelation at Sinai, G-d delivers a series of laws and ordinances towards the Israelites. In verse 22:1, we read, “If while breaking in, the thief is discovered, and he is struck and dies, [it is as if] he has no blood.[1] From this verse, we derive several stipulations pertaining to the law of self-defense against the theft of personal property, but what exactly is meant by the phrase, [it is as if] he has no blood, and who exactly is the he?

Rabbinic literature attempts to clarify the confusion. The Mishnah clearly understands the “he” to be the thief; “He is sentenced for the crime that he will ultimately commit.”[2] Rava explains that if a thief unlawfully enters a home with the intent to steal, the presumption is that the homeowner will not restrain himself when faced with prospect of losing his money or property. The thief must have said to himself, “If I go [and break-in with the intent to steal] then the homeowner will rise against me and not allow me to steal from him, and if he rises against me, and does not allow me to steal, I will kill him.[3] Accordingly, a thief who is found breaking into a house may be killed by the homeowner without question, yet if he (the homeowner) is killed, there shall be no blood ( no guilt of murder) for him (the thief). From this, we learn that if someone comes to kill you, rise and kill him first.[4]

While it might seem obvious that a homeowner is allowed to defend himself, even to the point of murder if the killing can be justified in a state of self-defense, the Mishna and Gemara also seem to entitle a thief to defend his life against the actions of the homeowner. However, the self-defense is not an absolute right, as it depends on the situation. As we read further in Exodus 22:2, “If the sun shone upon him, [it is as if] he has blood; he shall surely pay. If he has no [money], he shall be sold for his theft.”[5] A property owner has the right to protect his property with force but only with reasonable force. This premise is based on the assumption that if it was nighttime and visibility was poor, then the owner would be more justified in using lethal force to protect himself and his property. Conversely, if the break-in occurred during daylight, the homeowner should have demonstrated better judgement to resist using deadly force.[6]

Rashi however has a slightly more nuanced yet strikingly different approach to understanding Exodus 22:1. He seems to hold that the phrase “אין לו דמים (ain lo damim)” really means that he, the thief, had no blood or vitality, and he was dead from the beginning of his criminal act.[7] It was a foregone conclusion that the thief’s actions would result in violence and even death against him as the homeowner, “couldn’t hold himself back, looking while someone steals his property before his eyes and do nothing.”[8] Therefore, the thief must have entered into this situation with the understanding that he, himself might be killed.[9] One can then make a very logical leap to strip away many of the rights or legal claims the robber may have been entitled to, once liability and responsibility seem to shift away from the homeowner.

Ibn Ezra strongly disagrees with Rashi’s understanding. In Ibn Ezra’s interpretation, which is far more on the p’shat (basic, literal) level, he understands “him” to be the homeowner as the blood guiltiness (i.e., the guilt of bloodshed) belongs to the one who kills the thief. However, Ibn Ezra clarifies, “The one who kills the thief is not guilty of bloodshed. One has to be amazed at those who interpret “damim” (blood guiltiness) as life. If this is so, what is the meaning of “because thou art a man of blood (Samuel II 16:8) and “his blood shall be upon him?” (Lev. 20:9)[10] Ibn Ezra, in an almost astonished manner, openly calls out and questions Rashi’s understanding of the text.

Nehama Leibowitz offers a comprehensive and synthesized understanding of the phrase in question. At the heart of the issue is what exactly is meant by the “him (lo)” in the phrase “אין לו דמים.(ain lo damim)" In the Talmud, Rabbah examines the psychology of the thief and assumes that “he” is in fact the thief.”[11] She finds Rashi’s understanding as, “puzzling…and a forced explanation avoiding here the plainer and more plausible interpretation of “the owner has no blood guiltless” in favor of the more homiletic and ingenious “the thief has no blood.”[12] She agrees with Ibn Ezra’s account, “as it is patently impossible to translate “damim” in any other way.” The owner is guiltless and no blood payment is required.[13] Finally, she surmises that in fact, “most commentators take “him” to refer to the homeowner. Despite whatever understanding we may have as to whom the antecedent refers, a homeowner who kills a thief, in the process of breaking into his home, is not liable for murder but is considered as acting in self-defense. [14]

Ok, despite this wonderful waltz into the legalize of rabbinic literature, what baring, if any does this discussion have in our day-to-day lives??

[1] Exodus 22:1; New Jewish Publication Society Version (Philadelphia: Jewish Publication Society, 1985). אִם־בַּמַּחְתֶּ֛רֶת יִמָּצֵ֥א הַגַּנָּ֖ב וְהֻכָּ֣ה וָמֵ֑ת אֵ֥ין ל֖וֹ דָּמִֽים: [2] Babylonian Talmud Maschet Sanhedrin 72a, Babylonian Talmud, standard printed edition (Vilna, 1880s); מתני׳ הבא במחתרת נידון על שם סופו [3] Babylonian Talmud Maschet Sanhedrin 72a, Babylonian Talmud, standard printed edition (Vilna, 1880s); גמ׳ אמר רבא מאי טעמא דמחתרת חזקה אין אדם מעמיד עצמו על ממונו והאי מימר אמר אי אזילנא קאי לאפאי ולא שביק לי ואי קאי לאפאי קטילנא ליה והתורה אמרה אם בא להורגך השכם להורגו [4] Ibid [5] Exodus 22:2; New Jewish Publication Society Version (Philadelphia: Jewish Publication Society, 1985). אִם־זָֽרְחָ֥ה הַשֶּׁ֛מֶשׁ עָלָ֖יו דָּמִ֣ים ל֑וֹ שַׁלֵּ֣ם יְשַׁלֵּ֔ם אִם־אֵ֣ין ל֔וֹ וְנִמְכַּ֖ר בִּגְנֵֽבָתֽוֹ: [6] Rabbi Shlomo Yitzḥaqi’s commentary on Torat Chayim: Exodus 22:2 אם זרחה השמש עליו: אין זה אלא כמן משל אם ברור לך הדבר שיש לו שלום עמך, כשמש הזה שהוא שלום בעולם, כך פשוט לך שאינו בא להרוג, [7] Rabbi Shlomo Yitzḥaqi’s commentary on Torat Chayim: Exodus 22:1; אין לו דמים: אין זו רציחה, הרי הוא כמת מעיקרו. כאן למדתך תורה אם בא להרגך, השכם להרגו, וזה להרגך בא שהרי יודע הוא, שאין אדם מעמיד עצמו וראה שנוטלין ממונו בפניו ושותק, לפיכך על מנת כן בא, שאם יעמוד בעל הממון כנגדו יהרגנו [8] Ibid [9] Ibid [10]Abraham Ibn Ezra’s commentary on the Torah; Exodus 22:1 ופי' אין לו דמים. אין על הורגו שפיכות דמים. ויש לתמוה מן המפרשים דמים חיים אם כן מה הוא איש דמים. דמיו בו [11]Leibowitz, Nehama, Newman, Aryeh and World Zionist Organization. Department for Torah Education and Culture in the Diaspora Studies in Shemot : the Book of Exodus. World Zionist Organization, Dept. for Torah Education and Culture in the Diaspora, Jerusalem, 1976. pp. 372-374 [12] Ibid [13] Ibid [14] Ibid


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