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Monday, April 06, 2009
Baba Kama 100a - Goreim l'mamon vs. Grama vs. Garmi
The gemara established that according to R' Meir one is chayev even for indirectly causing a loss to someone, such as not rebuilding the fence between a vineyard and a field so that the vines cause issur to the field. The gemara 98b clearly makes a distinction between the rule of R' Shimon דדבר הגורם לממון כממון דמי, and the rule of R' Meir דדאין דינא דגרמי. In the particular case of the gemara where one burns his friends contract causing him a loss, the gemara says that R' Shimon's goreim l'mamon would not apply since the contract itself has no inherent value. Yet, the gemara concludes that one would be obligated through dina d'garmi. The gemara seems to imply that it is more likely to be chayev using dina d'garmi more than using the concept of goreim l'mamon, therefore whenever R' Shimon would hold that you are chayev, R' Meir would certainly hold that you are chayev. However, Tosafos 71b (d.h. v'savar) explains that R' Meir's din of garmi would only apply to cases where the money has value to everyone in the world, but something which only has value to a particular individual would not be included in the concept of garmi, but would be in the concept of goreim l'mamon. For example, chometz after pesach which is assur b'hana'ah to the entire world and only has value to the ganav (98b), even though R' Shimon would hold that one is chayev to the ganav for destroying it after pesach since to him it is worth something (returning to the owner and declaring הרי שלך לפניך), R' Meir would hold that garmi doesn't apply.
R' Shimon's concept of goreim l'mamon is a chiddush in the type of object that was destroyed [it must have inherent value to the exclusion of a contract, but doesn't need to have value for the whole world], but he would require the destruction to be a direct action of the mazik. Whereas R' Meir's concept of garmi is a chiddush in the action done by the mazik that it need not be a direct act of damage, but the object must have value for everyone in the world. In the case of the contract, if we were to be mechayev using the concept of goreim l'mamon (if not for the fact that it has not inherent value), we would consider the contract to be valued at whatever the lender can collect for it, so that when it is damaged the chiyuv is for damaging the paper of the contract which is regarded as money. But, when we are mechayev using garmi, the chiyuv is not for the destruction of the contract, rather it is for causing the lender to be unable to collect the debt owed to him.
Regarding garmi and grama, we generally assume that grama is patur, but garmi is chayev. Although the ketzos (386:2) explains that according to the rambam every case of grama is chayev according to R' meir based on garmi, most authorities assume that even according to R' Meir there are some cases which qualify as grama and others which qualify as garmi. An example would be the case in the gemara 99a where one knocks some one's coin into the sea, into clear water where a diver can retreive it (machlokes rashi and tosafos if you need both, or the definition of clear water is that a diver can retreive it). The Ketzos (386:10) quotes from the hagahos mordechai that garmi is when one indirectly causes a loss to some one's money, but when one doesn't cause a loss to some one's money or object, rather he causes someone to be forced to incur an expense to retreive his money or object i.e. hiring a diver to retrieve his coin, even R' meir would hold that the mazik is patur.