We read in Parashat Shemot of Moshe’s encounter with a pair of Israelite slaves who were quarreling with one another. The Torah relates that Moshe turned to the “rasha” – the guilty party – and repudiated him for his violence: “Lama takeh rei’ekha” (“Why do you strike your fellow?” – 2:13). The Gemara, in Masekhet Sanhedrin (58b), notes that Moshe speaks here in the future tense, using the term “takeh,” which literally means, “will you strike.” Apparently, the Gemara reasons, Moshe reprimanded the man before he even struck his fellow. On this basis the Gemara establishes that “ha-magbi’ah yado al chaveiro…nikra rasha” – a person who lifts his hand against his fellow is called “wicked,” even before striking him. Hence, such a person is disqualified from serving as a witness (Rama, C.M. 34:4, citing the Beit Yosef).
The Tur and Shulchan Arukh, in codifying this halakha (C.M. 420:1), write, “Whoever lifts his hand against his fellow to strike him is called ‘wicked’.” The implication of this phraseology, as noted by a number of Acharonim, is that this halakha applies only when one lifts his hand with the intention to strike his fellow. Accordingly, if one lifts his hand to frighten, intimidate or threaten, he does not violate this law. By adding the word “le-hakoto” (“to strike him”), the Tur and Shulchan Arukh seem to imply that this prohibition is restricted to situations where one truly intends to act violently. Chazal’s intent is not that raising one’s hand against his fellow is inherently forbidden, but rather that the forbidden act of striking one’s fellow is considered to have begun at the time the hand is lifted. As such, even if, for whatever reason, the aggressor does not follow through on his plan and withdraws his hand, he has violated a prohibition. But if he lifted his hand without ever intending to strike his fellow, he has not committed this violation.
Interestingly, one source (Beit Yisrael, C.M. 9) suggests that this may be the reason why one who violates this prohibition is not liable to malkot (lashing by the court). Since this prohibition is violated only when one intends to strike his fellow, which can never be verified with certainty, one is not liable to malkot unless he actually strikes his fellow. (In practice, even one who strikes his fellow is normally absolved from malkot, since in most cases he would be liable to pay financial compensation – Sefer Ha-chinukh, 595.)
A different view, however, appears to emerge from the formulation of the Rambam (Sefer Ha-mitzvot, lo ta’aseh 300) and Sefer Ha-chinukh (595), who write that it is forbidden “to hint at striking” (“li-rmoz le-hakot”). This formulation suggests that when the Gemara establishes the prohibition against lifting one’s hand against his fellow, the intent is not that the act of striking begins with the lifting of the hand, but rather than lifting one’s hand itself is a forbidden act. Accordingly, threatening one’s fellow would be forbidden even if there is no intention to actually follow through on the threat.
Another interesting ramification of this issue might be a case of one who prepared to strike somebody who was blind, sleeping, or for another reason did not see the gesture, but was then unable to, or chose not to, deal the blow. If we view the prohibition of “magbi’ah yado” to mean that the forbidden act of striking another person begins at the time one raises his hand, then it would seem that in this case, too, the aggressor violates the prohibition, as he prepared to strike his fellow. If, however, we understand the prohibition to mean that lifting one’s hand against his fellow is independently forbidden, one could argue that this prohibition relates to the emotional effect of intimidation. As such, one would violate this prohibition only if the gesture is seen by the “victim,” but not if he did not see the lifting of the hand and thus did not experience any intimidation.
(Based on Umka De-parsha, Shemot, 5774)
Rav David Silverberg
