The Enemy's Donkey Comes First

The Hook

The book of damages has been walking toward this day for sixty-two chapters. It opened with an ox that gores and a pit left uncovered in the public road. It passed through thieves and robbers, through men who strike and men who inform, and only days ago it reached murder itself. You would expect the last word of Sefer Nezikin to be the heaviest thing it has to say. Instead the final chapter is about a donkey lying in the road under a load of straw, and a passerby who does not much like its owner.

Before it gets there, the Rambam builds a fence on your roof, pours out a jug of water that sat uncovered overnight, forbids you to put a coin in your mouth, and tells you not to stand under a leaning wall. None of these is a crime against anybody. Nobody has been hurt. So why does the treatise of the murderer end with roofs and jugs and a stranger’s donkey, and what does it mean that its very last ruling sends you to your enemy before your friend?

Rotze’ach 11

The Roof That Is Yours

It is a positive commandment, the Rambam begins, for a man to build a guardrail for his roof. The verse says your roof, and he reads the word closely. A warehouse or a cattle barn needs no guardrail, because nobody lives there. A structure smaller than four cubits by four cubits needs none. A house owned by partners needs one. A synagogue and a house of study are excluded, which surprises people, because they are not dwellings. And if the public road is higher than your roof, you need no fence at all, because the verse speaks of one who falls from it, not onto it.

Then come the measurements. The fence must be at least ten handbreadths high, and it must be strong enough that a person can lean on it without falling. Think about that second requirement. A decorative railing satisfies the eye. The Torah wants something you could put your weight on in the dark.

Here the chapter turns. A man who leaves his roof open has failed a positive commandment and violated a negative one, do not cause blood to be spilled in your home. And then, almost in passing, the Rambam tells you why there are no lashes for it. Because it does not involve a deed. The man did nothing. He simply left a place the way it was. The same law covers a well or a cistern in the courtyard, which needs a wall ten handbreadths high or a cover, and it widens immediately into a general mitzvah to remove anything that could endanger life, as the verse says, beware for yourself and guard your soul.

Then the Sages add a long list of their own, and at first it sounds like a grandmother’s warnings. Do not put your mouth over a pipe and drink from the flow. Do not drink from a river at night, lest you swallow a leech you cannot see. Do not drink water, wine, milk, honey or brine that was left uncovered, because a snake may have drunk from it. The details are startlingly exact. Boiled wine is exempt. Wine within three days of the press is exempt. Anything hot enough to steam is exempt, and so is a liquid into which drops keep falling, because crawling things fear vapor and bubbles. Sleeping beside the jug does not help, since snakes are not afraid of sleeping men. How long must it stand open to become forbidden? As long as it takes a creature to come out from under the vessel, drink, and go back.

And then a sentence that should stop you. If nine people drank from an uncovered jug and nothing happened, the tenth may still not drink. The Rambam reports an incident in which the tenth man died, because the venom had sunk to the bottom. Filtering does not help. Nine survivors prove nothing.

The person who answers all of this by saying, I will risk my life, what does it matter to anyone else, or, I am simply not careful about such things, is not left alone with his bravado. He receives stripes for rebelliousness. Your body, it turns out, is not your private experiment.

Rotze’ach 12

Holes in the Fruit

Chapter 12 keeps the same eye on small openings. Meat from an animal bitten by a snake is forbidden while the poison remains unchanged in it. A bird found with its feet cut off is kosher, but it may not be eaten until it is checked, and the check is to roast it and see whether the meat falls apart. Figs, grapes, squash, melons and cucumbers with holes in them are forbidden. Even if you watched a bird or a rat pecking the fruit, it stays forbidden, because perhaps the creature only widened a hole that was already there.

The list moves from the table to the body and the street. Do not put coins in your mouth. Do not keep a cooked dish under the couch where you recline. Do not stick a knife upright in an etrog or a radish, lest someone fall on the point. Do not walk under a leaning wall, over a shaky bridge, or into a ruin. Some of the rulings in this chapter are drawn from the roads of the Rambam’s own world, where a lone traveler could disappear: whom to walk beside on a narrow ascent, whose medicine to accept, whom to let cut your hair. Read them as what they are, a map of where blood was spilled, drawn by a physician who had seen it.

Then the chapter widens into something that has nothing to do with snakes. It is forbidden to sell weapons, or anything that endangers people at large, to those of whom the Rambam’s world had reason to be afraid, and he extends the prohibition to a Jewish robber, because you strengthen the hands of a transgressor. A shield may always be sold, since it only protects, and arms may be sold to the soldiers of the country who defend its inhabitants. And then the verse that gathers it all: do not place a stumbling block before the blind. The blind man is anyone who cannot see in this particular matter. Give him bad advice and you have dug a pit in his road. When a person comes to you for counsel, the Rambam says, give him proper counsel.

Rotze’ach 13

The Donkey Under Its Load

And now the last chapter of the book. You meet a fellow traveler whose animal has fallen under its burden, whether the load was fair or far too heavy. You must unload it. Then you may not walk away and leave him standing there in a panic. You must help him lift the animal and load it again. Two positive commandments, and a negative one if you look away and pretend not to see.

The details are humane in a way law rarely manages. Unloading must be done for free, because the animal is suffering. Reloading you may charge for. If it falls again you help again, even a hundred times, and you walk with him for a parsah unless he tells you he does not need you. The obligation begins only when you see the animal close enough for it to be called an encounter, which the Sages measured as two hundred sixty-six and two thirds cubits. An elder for whom such work is beneath his dignity is exempt, and the test is simple: if it were his own animal, would he unload it himself? The pious, even a great nasi, step down into the dust anyway.

Then the phrase together with him. If the owner is standing there, walks off to the side and says, you have the mitzvah, go ahead, you are not obligated. The Torah does not ask you to carry a man’s load while he watches. But if he is old or sick, you do it alone.

The chapter then becomes a traffic code. On a narrow path a laden animal goes before a ridden one, and a ridden one before an empty one. Two ships in a strait, two camels on a mountain pass: the one carrying cargo goes first, and the one close to its port yields to the one far from home. Where they are equal, they make a settlement, and the Rambam calls that judging your colleague with righteousness.

And then the last case of Sefer Nezikin. Two men on the road. One donkey has fallen and needs unloading; the other has already been unloaded and needs help to reload. Unload first, because the animal is in pain. But if the one who needs reloading is your enemy and the other your friend, go to your enemy first, in order to subdue your inclination. Who is this enemy? Not a stranger. A fellow Jew you saw sinning, whom you rebuked privately, who refused to stop, whom it is even a mitzvah to hate until he returns. Even him, the Rambam says, you help, lest he linger over his money on the road and come to danger. The Torah cares for the lives of the wicked and the righteous alike. Do I desire the death of the wicked, says God, rather that he return from his path and live. With that sentence the eleventh book is complete.

The Unifying Principle

Put the three chapters side by side and the word murder changes its meaning. The treatise opened with the man who kills. It closes with the man who leaves a roof open, who leaves a jug uncovered, who passes a fallen donkey. The Rambam does not equate them. The murderer is executed, and the open roof carries no lashes at all. But he has placed them in one treatise, and his own name for it tells you why: the laws of the murderer and of the preservation of life. In both halves a life was treated as not my concern.

The Alter Rebbe, in the thirty-second chapter of Tanya, speaks to exactly the man in this chapter’s final halacha, the one you are permitted to hate because he refused rebuke. Even toward him, he writes, you must still love, because what you hate is the evil in him, while the Godly spark in his soul deserves your love. The Rambam gives that love a very physical shape. Before you have reconciled, before he has repented, you put your shoulder under his load.

The Baal Shem Tov read the verse about the donkey of the one who hates you in a way that turns it inward. When you see a chamor, a donkey, read chomer, physical matter. It is your own body lying under its burden, reluctant to carry what the soul asks of it. You might think the spiritual thing is to abandon it and leave its needs behind. The Torah says you shall surely help with it. You refine the body; you do not walk away from it. Seen that way, chapters 11 and 12 are the same mitzvah as chapter 13. The fence on the roof and the cover on the jug are how you lift your own donkey back to its feet.

Modern Application

Every home has its roofs. The balcony railing that is a little too low, the pool without a gate, the medication on a nightstand where a grandchild can reach it, the stairway bulb that has been out for a month. None of these is a deed, and that is exactly the point. The Rambam’s category is the danger you allow by doing nothing, and he does not let you off because you never pushed anyone.

The same holds for advice. Everyone now gives counsel, and the stumbling block before the blind is everywhere: the tip that profits the person giving it, the recommendation that serves the recommender, the approval you give a friend’s bad plan because disagreeing is uncomfortable. When a person comes to you for advice, give him proper counsel. It is a short sentence, and it rules out a great deal of what passes for helpfulness.

And then the enemy’s donkey. Most of us have someone whose load we would rather not lift, often someone who really did wrong and whom we really did try to correct. The Lubavitcher Rebbe returned again and again to Hillel’s teaching, love the creatures and bring them close to Torah, and insisted that the order matters: the love comes first, and it does not wait for the person to deserve it. The Rambam makes it concrete. When two people need you and one of them is the one you resent, go to him first. Not because he has earned it, but because something in you needs to be broken.

The Closing

Sixty-two chapters of damages, and the book does not end in a courtroom. It ends on a road, with an animal down in the dust and a man who would rather keep walking.

The laws of the murderer end where they began, with blood that must not be spilled. Only now the blood is spilled by a missing fence, an open jug, a glance that slides away.

Build the fence before anyone falls. Cover the jug before anyone drinks. And when the donkey lying in the road belongs to the one man you have every reason to pass by, the Torah has already decided whose load you lift first.