Wednesday, February 25, 2009

Baba Kama 61a - M'leches Machsheves

Generally, the concept of מלאכת מחשבת which we learn out from the mishkan as being necessary to be chayev on shabbos, limits the accountability for violating shabbos. For example, the reason that we exempt a מלאכה שאין צריכה לגופה and mekalkel are all based on the fact that they are not considered mileches machsheves, therefore one is not chayev for them on shabbos (to the exclusion of דבר שאינו מתכוין אליבא דר"ש which is an exemption in kol hatorah kula as we see from many gemaras). However, in our gemara the concept of mileches machsheves is used to explain why one would be chayev for winnowing on shabbos, even though the wind is necessary to assist in the melacha which for damages would not make him liable. How can the rule of מלאכת מחשבת be used as an exception sometimes to be machmir and sometimes to be more meikil that kol hatorah kula?
The Even Ha'Ozer (O.C. 328) discusses using a leach to draw blood on shabbos, whether it is a Torah violation of making a chabura, or since the actual chaburah is being done by the leech itself, the person is not chayev. Although he rejects the proof of the Magen Avrohom, he cites his own proof that one would be chayev. He introduces this with a question: We find that one is allowed to put his animal on the grass on shabbos, knowing that the animal will eat. Yet, when one is ma'amid his animal on the produce of someone else, he is considered a mazik and chayev for damages. If in the context of damages we consider it an action not just a grama, he should also be chayev on shabbos? He rejects the notion that one is more likely to be chayev for damages, based on our gemara where we clearly see that one is more likely to be chayev for shabbos than for damages? He concludes that shabbos is not more kal or chamur than nezikin, rather they are dependent on different factors. For nezikin the primary issue is whether the damage will be definite - so long as the damage will definitely occur, whether it is with his intent or not, it is considered an act of damage not just a grama (therefore one is chayev for standing an animal on his friends property to eat). But in the context of shabbos, מלאכת מחשבת אסרה תורה, meaning that the primary factor is that he intended to violate shabbos, and succeeded in shabbos being violated, therefore even if the result is definite he will be exempt so long as that was not his intent. But, when that is his intent such as in our gemara where he intends to winnow, he would be chayev even though the wind assisted him. The same would apply to a leech, since his intent is that it make a wound to draw out blood.
Based on this, מלאכת מחשבת doesn't make shabbos stricter or more lenient, just different. On shabbos the entire focus is whether his intent was to result in the melacha, therefore even if he required so assistance from the wind he would be chayev. But when there is a lack of intent such as מלאכה שא"צ לגופה he is patur.

Tuesday, February 24, 2009

Baba Kama 58a - Dina D'malchusa

In R' Asher Weiss's weekly shiur on parshas mishpatim he quotes 2 fundamental approaches for the source of dina d'malchusa. The Ran and Rashbah take the approach that the land is owned by the king so he can implement what he wants. Whereas the Rashbam (baba basra 54b) and the Rambam (Hilchos gezeila 5:18) take the approach of "heskem b'nei hamedina", meaning that the inhabitants of a particular area accept certain rules and principles on themselves (there are also more approaches such as rashi in gittin who implies that it is based on the fact that goyim are commanded on dinim, which gives them authority to impose their dinim even on the jews). Based on the approach of "heskem b'nei hamedina", the rambam makes a distinction between an actual king and a warlord or mafia, since those groups may be powerful but have not been accepted by the population. This approach also seems to be the basis of the Ramah quoted in Tur (c.m. 369) who says that tax increases that are being imposed against popular opinion would not be justified using the rule of dina d'malchusa.
Tosafos about mavriach ari, at the very end speaks about Jews who were forced to escape from their land to avoid taxes that they could not afford. The land would then be taken by the government and sold off to others. The R"I holds that if the government sold it to another jew, the sale is not binding since they had no right to sell it in the first place (but the original owner would have to compensate for benefits he received). Tosafos explains that this is not dina d'malchusa, rather it is gezeila. Tosafos doesn't consider it gezeila due to the lack of authority such as a warlord or mafia type, rather tosafos says - ואם יש שר שבא לשנות את הדין ולעשות דין לעצמו אין זה דינא דמלכותא שהרי זה הדין אין הגון כלל
Tosafos seems to understand that the concept of dina d'malchuas is limited to what people consider justice, not what people perceive as theft. Therefore, even a government who technically has the power to impose dina d'malchusa, they can only do what is considered by most people to be "fair". This would also be based on the approach of the Rambam and Rashbam that the concept of dina d'malchusa is based on consensus of it's citizens. 

ב"ק נ"ט - אבילות דירושלים וקץ כופרי

ב"ק דף נ"ט: "אליעזר זעירא הוה סיים מסאני אוכמי וקאי בשוקא דנהרדעא וכו' אמר להו דקא מאבילנא אירושלים אמרו ליה את חשיבת לאיתאבולי אירושלים וכו' אמר להו או אתון בעו מינאי מילתא או אנא איבעי מינייכו מילתא אמרו ליה בעי את אמר להו האי מאן דקץ כופרא מאי משלם אמרו ליה משלם דמי כופרא והא הוו תמרי א"ל משלם דמי תמרי אמר להו והא לאו תמרי שקל מיניה אמרו ליה אימא לן את אמר להו בששים וכו' - ע"כ. והגמרא צ"ב מה השייכות של השאלה איך שמין היזק אם אבילות על ירושלים.
ואשר נראה לי דבאמת צ"ע הגמרא, שמהשקלא וטריא ביניהם משמע שלא שייך לשום הכופרא בפנ"ע ולכאורה הוי גזה"כ לישום ע"ג שדה אך בלי הגזה"כ היינו שמין בפנ"ע. והנראה לי שביאור הגזה"כ שאין משלמין על הכופרא בפנ"ע אף שיש לזה ערך בשוק, דהקרא מגלה שלא משלמים אלא על היזק שנעשה עכשיו ולא על דבר שששייך שיהיה לו ערך או לא (בלע"ז פיוטורס). דהיינו הערך של כופרא בשוק כעת הוא לא הערך העצמי שלו אלא על מה שעתיד להיות, ועל זה לא משלמים. רק כששמין ע"ג שדה זה נחשב ערך העכשווי של השדה. דבתוך מהלך של שדה המובילה לצמיחת פירות, יש גם "נותן טעם" לערך של כופרא.
ובדומה לזה לגבי בית המקדש. אם אין חיבור וקשר בין תחתונים ועליונים א"כ אין כעת לבית המקדש שום ערך ואין על מה להתאבל אלא לבעל יוהרא שחי בעליונים. אך לאדם שמבין שמהלך החורבן מוביל לבנין בית המקדש העתידי - לו יש על מה להתאבל.וזהו מה שהוא גילה להם שכמו שלכופרא אין ערך אלא עם מערכת של שדה, כך הערך של בהמ"ק היום הוא בתוך מערכת שמובילה לבנית בית המקדש השלישי, ולכזה אדם שחי כך כל השנה שייך להתאבל כל השנה.

Thursday, February 19, 2009

Baba Kama 55a - Tov in the Luchos

One of the strangest exchanges that we find in baba kama is the dialogue about why the term "tov" is missing in the first of the aseres hadibros and is only found in the last set. R' Chiya Bar Abba then makes a comment indicating that he isn't sure about the proper text, until R' Tanchum confirms it. Finally the gemara concludes that since the first tablets were to be broken, Hashem foresaw this and left out the term "tov".
Rashi explains that the gemara is making reference to the term "tov" in the mitzvah of kibud av v'eim that says למען ייטב לך. The Maharatz Chiyus is bothered by the very difficult question, how is it that the Tanaim were not familiar with the text of the aseres hadibros, until it was confirmed by R' Tanchum. Although Tosafos in Baba Basra writes that sometimes they were experts in pesukim, it seems strange to say that they didn't know the aseres hadibros!
The Maharatz chiyus suggests that the discussion was whether the aseres hadibros that are recorded in parshas yisro was the text on the first set of luchos, and the aseres hadibros in v'eshchanan are the second set of luchos. R' Tanchum had a mesorah that it was in fact the case, to which the gemara finally explains that it now makes sense that the luchos which were to be broken didn't contain the term "tov".
The Torah Temima (Devorim 5:16) offers another approach. The gemara is making reference to a midrash where Hashem says to Moshe that He is going to give a second set of luchos, to which moshe is happy and responds "טוב לי תורת פיך מאלפי זהב וכסף". Why did he only respond this on the second and not the first? On that the gemara explains that since they would be broken, it would be inappropriate to say that about the first set of luchos.
However, based on the conventional understanding of the gemara, it certainly seems to hold that the aseres hadibros of yisro were the first luchos, and v'eschanan the second. Based on  this, we can make another observation. In the second luchos, by shabbos and kibud av it says כאשר צוך ה' אלקיך which rashi interprets makes a reference back to mara where the water was bitter. Why is this reference specifically in the second luchos and not the first? The Chasam Sofer in Parshas Beshalach explains that Hashem taught us in Mara that he is our personal doctor - כי אני ה' רופאיך. Unlike a physician who just heals the sick, Hashem is our "family doctor" who is just as interested in providing us with preventional medicine, as He is with remedies for illness. In the second luchos Hashem wanted to remind klal yisroel that doing aveiros (such as the golden calf) forces him to bring upon us illness, and then show he can heal. He much prefers avoiding illness in the first place by our commitment to His Torah - כי אני ה' רופאיך

Wednesday, February 18, 2009

Baba Kama 53b - Man, Ox and Bor all damaging together

The gemara says that if a man and an ox would together push another animal into a bor, they would equally split the damages between the the man who pushed, the ox who pushed and the bor. Tosafos (here and on 6a) point out that we must be speaking about the person pushing accidentally, because if he intentionally pushed, why should the ba'al ha'bor be chayev! Just as if one throws his friends talis into a fire, or pushes his friends animal into a bor, the thrower and pusher are fully responsible, not the ba'al ha'eish or the ba'al ha'bor, here also the pusher should be more chayev than the ba'al ha'bor.
It is not clear from Tosafos what exactly the din would be if the person pushed with intent, together with an ox, into the bor of a third person. The ketzos Ha'choshen (410:2) explains the paradox. From the perspective of the person who pushed intentionally, the ox who pushed is his partner, but the bor is not. However, from the perspective of the ox who pushed, both the person and the bor are it's partners in this damage. So, if the person will pay half, the ox half, and the ba'al ha'bor exempt, the ox can claim that the ba'al ha'bor is his partner. If the person pays 2/3 of the damage and the ox 1/3, the person can claim that from his perspective the ox was his half partner in this damage. Therefore, the ketzos says that the person pays 1/2 the damage, and the shor and bor split the other half. Why? Because if the person pushed alone he would pay full, now that he has the ox as a partner he pays half. The remaining half the shor should pay, but the shor has the bor as a partner so they each pay 1/4. Based on this, the case in the gemara can be speaking when the person does it with intent, and all 3 participate in paying, but not equally. However, Tosafos implies that when the person does it with intent, the owner of the bor is completely exempt.
In the hagahos on the ketzos, they quote from R' Shimon Shkopf - From the perspective of the ox, there is no difference if the person was intentional or not, so the ox has 2 partners. From the perspective of the person who did it with intent, he only has one partner. Therefore, the ox pays 1/3, the person pays 1/2, and the remaining 1/6 is payed by the ba'al ha'bor.

Tuesday, February 17, 2009

Baba Kama 52a - Locking the Door: Chazaka?

Tosafos quotes the Rashbam who explains that נעל וגדר כל שהוא בנכסי הגר does not refer to merely locking the door, because that would not qualify as a chazka to acquire the house, rather it would be מבריח ארי by preventing a damage which doesn't qualify as a kinyan. Tosafos disagrees and proves from other places that locking the door would constitute a kinyan. Tosafos explains that locking the door is more than just preventing damage, because it demonstrates ownership by not allowing anyone else to enter.
Both Tosafos and the Rashbam agree that preventing damage would not qualify as a kinyan, but they argue whether locking the door is just preventing damage or demonstrating ownership. Why doesn't preventing damage qualify as a kinyan? The SM"A (choshen mishpat 192:10) writes:
שסילוק ההיזק אינו קונה, זה לשון הגמ' משום דהו"ל מבריח ארי מכנסי חבירו, פירוש רשב"ם ז"ל הא למאי זה דומה למשיב אבידה דכל ישראל מצווין להציל ממון חבריהם מן ההיזק
The Rashbam holds that since 'mavriach ari' is an obligation on every jew to save the property of another, it doesn't demonstrate ownership and cannot qualify as a kinyan. R' Akiva Eiger points out that based on this rationale, in the estate of a ger who died, since his estate is hefker, the logic of protecting another jews property no longer applies, therefore it should qualify as a kinyan. The Rashbam himself as quoted by Tosafos clearly holds that even in the estate of a ger, protecting the estate does not constitute an acquisition. The Pischei Teshuva quotes from the Ramban that even in the estate of a ger where there isn't any mitzvah, one cannot acquire by merely protecting the property from damage since it is just an act of preventing loss and not an act of a kinyan.

Monday, February 16, 2009

Baba Kama 51a - Ein Shliach l'dvar aveira

The gemara is searching for a case where there can be 2 parteners in a bor. The gemara suggests that if 2 people would together pay a third person to dig a bor, the first 2 would not be considered partners in the bor. The reason is that it is considered an aveira to dig a bor in the reshus harabim, so ein shliach l'dvar aveira would make the digger completely responsible for the bor, and the action would not be attributed to the first 2 at all. The gilyon Hashas refers to 2 sources, one a mishne l'melech, and the other a turei Even.
The Mishneh l'melech proves from this gemara that even by an issur d'rabonon we say ein shliach l'dvar aveira. He assumes that the aveira here is damaging the reshus harabim as rashi writes on 53a, and it is only an issur d'rabonon, yet we say ein shliach l'dvar aveira. I am not sure why he assumes that issur of damaging the reshus harabim is only d'rabonon. Is it only an issur d'rabonon to damage someone else's property? It would seem that it should be considered d'oraysa!
The Tueri Even discusses Tosafos in Kiddushin 42b who assumes that if the shliach is unaware that the act is an aveira then the sender is liable because the argument of דברי הרב ודברי התלמיד דברי מי שומעין no longer applies. The Turei Even proves from our sugya that even when the shliach is a shogeg we still say אין שליח לדבר עבירה. We can always say that the case is where 2 people appoint a third to dig a bor in reshus harabim without him being aware that there is an issur, so if tosafos is correct the first 2 should be liable for the bor. From the fact that the gemara doesn't entertain this case implies that even if the shliach is a shogeg we still say אין שליח לדבר עבירה. Based on this proof, rashi becomes somewhat problematic because rashi explains that the concept of אין שליח לדבר עבירה is entirely based on the concept of דברי הרב ודברי התלמיד דברי מי שומעין which certainly should not apply to a case where the shliach is a shogeg.
Another issue that I have is that if rashi 53a is correct that the aveira we are speaking about is the damage to the reshus harabim, the chiyuv of bor doesn't seem to be connected to the aveira. Normally when we say ein shliach l'dvar aveira, the issue is attributing the aveira such as murder or stealing to the sender rather than the agent. But, in this case the person who is digging the pit is doing 2 seperate activities: 1. he is doing an aveira of ruining the reshus harabim. 2. he is causing a public hazard by putting a bor in the reshus harabim. The 2 are not related because one can technically place a bor in the reshus harabim such as a stone, and not be in violation of an aveira of ruining the reshus harabim, yet be liable for the bor. Therefore, the concept of אין שליח לדבר עבירה should only exempt the sender from the violation of ruining the reshus harabim, but he should still be liable for the damages caused by the bor that he asked the agent to dig. It must be that the aveira at hand is the setting up of a bor, just as any mazik is an issur aside from the liability, so the aveira is completely tied to the person who is liable for the damage. Therefore, if אין שליח לדבר עבירה says that the sender did not do the issur of digging the bor thereby setting up a public hazard, the agent would be the one who set up the danger and therefore the agent would be liable for the damages.

Sunday, February 15, 2009

Baba Kama 50a - Connection between Avrohom and Aliya L'regel

The gemara tells the story of the daughter of Nechunia who would dig wells for the olei regel to have drinking water on their way up to Yerushalaim. One day she fell into a well and people feared that she was killed but R' Chanina Ben Dosa was sure that she was alive because the zechus of her father doing mitzvos with the wells protected her. When she was asked how she escaped, she said that an old man who rashi identifies as Avrohom Avinu came with a ram symbolizing the akeidas yizchok, and rescued her. Why Avrohom?
In Chagiga 3a the gemara says darshens from the pasuk מה יפו פעמיך בנעלים בת נדיב - how beautiful are the feet of the Jewish people when they ascend for aliya l'regel. "Bas nediv" refers to the daughters of Avrohom Avinu who was the first convert. Rashi explains that the concept of Avrohom being the first convert meant that he devoted himself entirely to recognize Hashem (it does not mean that he had the status of a Jew, because Rashi writes in avoda zara 3a that he had status of a ben noach). Once again we see a connection between Avrohom and aliya l'regel, but now with some insight that Avrohom devoted his entire self to recognize Hashem. The gemara in Pesachim 8b comments that when the Jews go to be o'leh regel Hashem offers special protection to their possessions and property which would otherwise be ransacked by the goyim who all know that the Jews leave at that time of year to be o'leh regel.
Avrohom Avinu symbolized giving up all worldly possessions, leaving his father's home and even sacrificing his own son, in pursuit of Hashem's will. He was literally on the go, trusting in Hashem's protection. It is Avrohom who gave the courage to klal yisroel to be o'leh regel 3 times a year, placing the protection of all their physical possessions in the hands of Hashem. Nechunia who enabled people to be o'leh regel by digging wells to provide drinking water, was protected by Avrohom since the aliya l'regel demonstrates the character trait of mesiras nefesh that Avrohom instilled in Klal Yisroel.

Thursday, February 12, 2009

Baba Kama 47a - Child is a limb of the Mother

The gemara says in temurah 30b that when a person is rovei'ah a pregnant cow, the cow and calf are both chayev misah because היא וולדה נרבעו. Tosafos explains that this does not prove that the child is viewed as a limb of the mother since the chiyuv misah on the calf is due to the calf also receiving "hana'ah" from the act of aveira. However, our sugya which says that the damage caused by pregnant cow can be collected in full either from the cow or from the calf, indicates that the child is viewed as a limb of the mother, otherwise each should only be responsible for their share and not for the entire damage.
R' Akiva Eiger (kesavim 172) has a famous question that if we assume that היא וולדה נרבעו because the calf is a limb of the mother, why would it be permitted for one to have relations with his pregnant wife - shouldn't it be a violation of having relations with one's daughter? R' Akivah Eiger considers the assumptions in the question to be valid, and therefore answers based on a technicality that since the fetus who is his daughter is less than 3 years old, it is not viewed as an act of relations. Although one would be forbidden to have relations with any issur ervah who is less than 3, that is not a violation of an issur ervah, rather a violation of wasting his seed, which does not apply when he is having relations with his wife.
Focusing on the question of R' Akiva Eiger, which he prefaces by saying that if  עובר ירך אמו then it should be forbidden to have relations with one's wife who is pregnant - why does he preface the question with the concept of עובר ירך אמו since tosafos explains that the din of היא וולדה נרבעו applies even if עובר לאו ירך אמו based on the concept that the fetus also gets hana'ah?
Also, the assumption of R' Akiva Eiger that when one is roveiah the cow, it is as if he is also rovei'ah the unborn fetus seems strange. In the case of the cow and calf, since the calf is considered a limb of the mother, it becomes assur together with the mother even though the bi'ah was to the mother and not the calf. But in the case of a man having relations with his pregnant wife, it is not as if he had relations with the daughter, so there is no reason to assur the act. It may be true that if the woman would assume a status of issur, that may apply to the child just as the status of "nir'vah" applies to the child. Based on this, the question of R' Akiva Eiger would actually be stronger if we would say עובר לאו ירך אמו and therefore be forced to say that the issur on the calf is because it also received hana'ah , implying that it is as if he actually had relations with the calf also?

Tuesday, February 10, 2009

Baba Kama 45a - Hezek Nikar and Hiding the ox from Beis Din

The gemara says that everyone agrees that when a shomer return something which became assur b'hana'ah, such as chometz that sat in the shomer's possession over pesach, he can say to the ba'alim "here is your item" - הרי שלך לפניך. The shomer would not be responsible for the loss. However, an ox that killed while it was being watched by the shomer, there is a machlokes. Rabbonon hold that the shomer is liable since he allowed beis din to get their hands on the ox, and without them getting the ox, it could not be judged to be killed. R' Yakov argues and says that since they could have judged the ox to be killed without getting their hands on it, the shomer can say הרי שלך לפניך and is not responsible.
Rashi understands that returning issur hana'ah qualifies as returning. Also, all agree that the shomer is not responsible for not hiding the ox from beis din, just as he is not liable for being passive and allowing the chometz to become assur over pesach. The issue here is whether the shomer was negligent by doing an act of handing over the ox to beis din. Rabbonon hold that regarding his "shomer" responsibilities he is not liable because for that he can claim הרי שלך לפניך, but since he handed over the ox to the beis din, it is considered being mazik the owner b'yadayim, for which he is liable as a mazik. This is only because the beis din having the ox gives them the ability to judge it, therefore he is a mazik for handing it over. But according to R' Yakov that they could judge it even not in its presence, he is not doing an act of damage by handing it over so he is not chayev.
Tosafos asks on rashi: If the act of handing over is considered a היזק ניכר, a recognizable damage, then even if he allows the beis din to take it without making an effort to hide it, he should be chayev. And if it is considered a היזק שאינו ניכר, a damage that is not recognizable in the object, he should not be liable even for handing it over?
Due to these questions, Tosafos deviates from rashi's approach, and explains that it is considered a recognizable damage and he is therefore chayev even for passively not taking measures to avoid the beis din from getting their hands on it. Therefore the rabbonon hold that he is chayev as a mazik even if the beis din grabs it from him without him handing it over, whereas R' Yakov holds that since they could judge it even not in it's presence, it is considered a non-recognizable damage, so he is not liable.
The Mishneh L'melech (gezeila 3:4, cited in rashash and gilyon mr"sha) asks on Tosafos question, we can consider it a damage that is not recognizable which is at least chayev m'drabonon similar to being metamei the taharos of someone else? The Steiper (31) explains Tosafos question that the handing over the ox to beis din really should not qualify as a damage at all, rather it is a mitzvah to help the beis din obtain the ox. The responsibility here of the shomer is only due to the fact that he is a shomer who has chiyuvim to the owner.  Being that he has chiyuvim to the owner, by handing over the ox to beis din, he may be succeeding in his responsibility to Hashem, but is failing in his responsibility to the owner. Therefore, Tosafos asks that if היזק שאינו ניכר לא שמיה היזק so that he can't be liable as a "mazik", he should be patur for handing it over to beis din since it is considered a mitzvah. 
Rashi would answer this by saying that he may be obligated to Hashem to assist the beis din in getting the animal, but his responsibility to the owner [which is also recognized by Hashem] is to avoid beis din from getting the animal. Therefore by handing them the animal he is failing in his responsibility as a shomer. Since as a shomer he is in violation for helping the beis din get it, he can no longer claim to be justified by giving it to them and becomes a mazik on this act, so he is liable as a mazik.

Monday, February 09, 2009

Baba Kama 44b - Hasra'as Safeik

The gemara says that in a case where one throws a stone into an area that has half yisroelim and half goyim, he is patur from capital punishment because "safeik nefashos l'hakel". Tosafos asks, why do we need the concept of "safeik nefashos l'hakel", even without that he should be patur since it is a warning of safeik. Since it is not clear that this action he is about to do will kill a yisroel, it is a hasra'as safeik which is not called a warning at all, so he should be exempt since he wasn't warned? Tosafos answers that really the gemara only works out according to the opinion who says that even a warning m'safeik qualifies as a warning, and makes a distinction between this and another case. However, the Rashba explains that whenever we have a majority, since the rule is that we assume the stone will hit the majority, it qualifies as a definitive warning. If there were 9 goyim and 1 yisroel, we would not say it is a hasra'as safeik, rather it is like all goyim. Similarly, if there were 9 yisroelim and 1 goy, we consider it a definite warning since we assume the rock will hit a yisroel, just that the torah exempts him based on the concept fo ka'vuah. The concept of kavu'ah is that they are treated as half and half, where we then implement the pasuk of "v'hitzilu ha'eida" to say safeik nefashos l'hakel, which makes it as if it were mostly goyim. Basically, so long as there is a rov in one direction or another, we consider it a definite hasra'ah as if he were warned not to kill whoever is the rov. When it is half and half, or kavuah, we use the concept of safeik nefashos l'hakel to make it as if it were mostly goyim, to the exclusion of being like mostly yisroel (which would then be a definite warning for yisroel to make him chayev misah).

Sunday, February 08, 2009

Baba Kama 43a - Differences between Kofer and Compensation

The gemara has a discussion whether kofer is a "kapara" - atonement, or a k'nas - penalty. If kofer is a penalty, the differences between kofer and damim - compensation, are very clear (i.e. mo'deh b'knas patur). But if kofer is a kapara (the gemara 41b is explicit that admitting would be chayev, and even Raba 43a would only patur because of a technicality that the ox isn't killed), what are the differences between kapara payments and compensation? If kofer is the value of the damager, it is clearly very different than compensation which is the value of the nizuk, but if kofer is the value of the nizuk (machlokes 40a), what is the difference?
1. Rashi (d.h. lo damim) indicates that if one is an o'nes in that he has no money, he is not in violation of anything for not paying a "damim" type payment, but if it is a "kapara" he would remain susceptible to punishment until he pays.
2. Tosafos (d.h. mai) - If the mazik dies, he is not in need of paying for his kapara, because after one dies he is not in need of this kapara, just as korbanos that he failed to bring in his lifetime, need not be brought in his death. This answer seems to be a big chiddush. We find that a person can accrue zechuyos even after he is dead (such as when his children say kaddish, or a d'var torah is said in his name), so why can't he obtain kappara from a payment after his death? Tosafos seems to understand that the kapara is not achieved by the nizuk's inheritors receiving, rather it is achieved by the mazik paying. Once the mazik is dead, his estate no longer belongs to him so he would not be paying and therefore cannot receive atonement.
3. Tosafos (d.h. mai) - The nizuk's inheritors cannot be mochel on receiving kofer, because until the family of the nizuk receive the kofer, the mazik goes without kapara. It would seem to follow that since the mazik is entitled to a kapara through paying kofer, the nizuk's inheritors have no right to refuse accepting the kofer.
4. Gemara 40a - There is a possibility that an ox owned by partners that kills a person, each one would have to pay full kofer, rather than dividing the payment.
5. Gemara 40a - There is also a possibility that for kofer it is assumed that the person will pay to receive atonement so it is not necessary to take a collateral from him, but for a compensation payment we take a collateral.
6. Ra'avad (mentioned in Rashba) suggests that perhaps kofer is paid based on erchin value rather than real value in the market, but the rashba argues.
7. Ra'avad (in Shita) suggests that for a ba'al chov we are mesadrin - we leave behind certain essentials when we collect from him, but for a kapara we would not be mesadrin.
8. Me'iri explains that we are only bound to come up with a distinction between kofer and damim, if we interpret the gemara that for killing a person one can sometimes be patur from kofer but have to pay damim. The meiri rejects this peshat in the gemara and therefore says we do not need to come up with any distinction between kofer and damim, because in a case of kofer, one is never chayev damim.

Thursday, February 05, 2009

Baba Kama 39b - Are children responsible for their damages when they grow up?

The Hagahos Ashri (perek hachovel #9 in Rosh) writes that a child who damages is responsible to compensate the nizuk for his damages when he becomes an adult. He proves this from our gemara where it says that even according to the opinion that yesomim are not responsible to pay for their mu'ad animal damaging, the nizuk would collect from the caretaker, and the caretaker would collect from the orphans when they grow up. If children are responsible to compensate for their animal causing damage that occurred when they were young, they are certainly responsible to compensate for their own damage.
Most Rishonim disagree with this pesak and it is not even mentioned in Shulchan Aruch. But, according to the opinion of the hagahos ashri, would children be responsible to do teshuva for aveiros that they committed when they were younger?
R' Moshe (Y.D. 2:10) explains that even according to the hagahos ashri, the responsibility to pay when they grow up, does not apply to other aveiros. He explains that from the fact that the responsibility to compensate from damage does not require a warning in advance, the requirement to compensate does not stem from the aveirah that was violated, rather from the fact that damage was done to another. This 'avlah' that was done to harm the money of someone else, is not connected to the aveirah at all, and applies even for a child.
The only reference to a child having to do teshuva for aveiros that were violated when he was younger is the rama (o.c. 343) who says that a child who hit his father or violated other aveiros, it is good to do teshuva and something positive for kappara when he grows up. R' Moshe explains that this itself is not a requirement, rather just a good suggestion.
Regarding the proof from our gemara where the caretaker can collect from the yesomim when they grow up - perhaps that is only because the exemption of a child is based on his inability to take care of himself and watch out from damaging others. But, in the case where he has a caretaker to keep a watch on his animal, the child would be responsible for damages, just that collection is pending until he becomes an adult.

Wednesday, February 04, 2009

Baba Kama 38a - Distorting Torah

In kiddushin, I quoted a few teshuvos from r' moshe regarding double ring ceremonies. 
In one of the teshuvos (E.H. 3:18) he makes a fascinating point based on the maharshal in this gemara.
R' Moshe writes that there is an "issur gadol" to do any type of distortion of a halachic process, even if it is benign, which will cause people to forget dinei torah. He cites the Yam Shel Shlomo (9) that one cannot distort any din even for pikuach nefesh purposes (like tosafos says in his first answer was the case of the 2 sardiyotos), because it is like being kofer against toras moshe. Even though there wasn't any chashash of kilkul because it would have been said to goyim, not jews, it was still assur. We see that it is b'etzem assur to distort any din torah, even if it won't directly lead to a kilkul. Just as it is assur to say something is a din torah when it isn't, it is also assur to do a ma'aseh implying something is a din torah, when it in fact, is not.

Tuesday, February 03, 2009

Baba Kama 38a - Damaging goyim

The gemara says that the term רעהו in the torah is davka, so that the din should be that whether a jew's ox gores a goy or a goy's ox gores a jew, the damager should not be liable, as the tana of our mishna holds by hekdesh (The nimukei yosef explains that we darshen "ray'eihu" by goyim as we do by hekdesh to exempt in both directions. Maharshal changes the girsa in tosafos to conform to this, but the maharsha and maharam maintain that the term "ray'eihu" only excludes hekdesh, but does not exclude goyim. Rabbeinu peretz in shita also says that goyim are included in רעהו). However, the rabbonon darshened that since the goyim were not keeping the 7 noachide mitzvos, the torah was matir their money and hold them responsible for damages they cause to a jew.
The Rambam (nizkei mamon 8:5) offers a rationale for when a jew causes damage to a goy being patur, and when a goy causes damages to a jew being chayev. When a jew damages a goy he is patur because "לפי שאין הגוים מחייבין את האדם על בהמתו שהזיקה, והרי אנו דנין להם כדיניהן". When a goy damages a jew he is chayev because "קנס הוא זה לגוים לפי שאינן זהירין במצות, אינן מסלקין הזיקן, ואם לא תחייב אותן על נזקי בהמתן אין משמרין אותה ומפסידין ממון הבריות".  Why does the Rambam give a rationale in both directions? If we darshen רעהו to exclude a goy, it is understandable why a jew is patur for damaging them without any logic, and if we don't darshen it to exclude a goy, it is understandable that a goy who damages a jew is chayev without offering any rationale?
The rambam clearly learns that the gemara which says that since they were not keeping the 7 mitzvos, the torah was matir their money, to explain why a goy who gores a jew is chayev to pay full. This implies that the default position is that both a jew to a goy and a goy to a jew should be patur, because רעהו is davka, and the gemara had to explain why a goy is chayev for damaging a jew. The Rambam understands that the fact that they weren't keeping the 7 mitzvos is an indicator that they were not concerned about others i.e. killing, stealing, adultery. Since they were not concerned about damages to others, they weren't watching their animals to prevent them from damaging, so we apply a penalty to encourage them to watch their animals.
Now, the only question that is left is why the Rambam has to give a rationale for a jew being patur for damaging a goy - the reason should simply be because it says רעהו? The Ra'avad argues on the Rambam's logic that it is simply not true, because when a goy's animal gores another goy, the nizuk grabs the animal to collect from? Although the Magid Mishna tries to justify the rambam's rationale, that it applied where he lived, he points out that the din would be the same even in societies where secular law dictates that people are responsible for their animals damaging. The lechem mishna claims that the Rambam's rationale is from the yerushalmi, but the question still remains why is it necessary?
The Rambam seems to darshen the טעמא דקרא, that the rationale for the torah exempting a jew for damaging a goy is because in their dinim they are not liable for damaging each other. The Rambam isn't just making this rationale up on his own (as the magid mishna indicates), rather he saw this rationale in the pasuk itself. Whenever the Torah limits a mitzvah to a ריע, such as ואהבת לרעך כמוך and לא תעמוד על דם רעך, it is indicating that since the Jews are an isolated entity from the goyim, they are obligated to treat each other with special privellages. Therefore, the Rambam writes that the רעהו in the context of damages as well, is not merely a gezeiras hakasuv, rather it is an indication that paying for damages that were caused by one's animal, is a special privellage between jews, and doesn't apply to goyim, since they don't recognize it as something worthy of being liable for.

This past shabbos, Dr. Ari Tuchman raised a very insightful question: Why do we use the term וישאלו איש מאת רעהו by the jews taking from the mitzrim, doesn't רעהו imply jew from jew? (This question would only be according to nimukei yosef and maharshal that i mentioned above, who consider the maskana of the gemara to be that רעהו  excludes goyim).
I found that Rabbeinu B'chaya answers:
יראה לי שקודם מתן תורה היו כל הבריות חברים כאחד, אבל לאחר מתן תורה שהחזיר הקב"ה את התורה על כל אומה ולשון ולא קבלוה עד שקבלוה ישראל, יצאו כל האומות מן האחוה והריעות ונשאר השם הזה בעם ישראל בלבד שנקראו אחים ורעים למקום, הוא שכתוב "למען אחי ורעי", ודרשו רבותינו "לכל אבדת אחיך" אחיך ולא לגוי, וכן "לא תשיך לאחיך" אחיך ולא גוי
Based on Rabbeinu B'chaya, the status of the jews being called "רעים", to the exclusion of the goyim, occured at matan torah when the goyim refused to accept the torah, so that only the jews remained רעים of Hashem by accepting His Torah. Therefore, the status of רע which teaches that a jew is patur for damaging a goy, occured at the precise moment that the goyim rejected the torah, causing Hashem to be mafkir their money to the jews and making them liable for their ox damaging jews.

Monday, February 02, 2009

Baba Kama 37b - Patterns for Mu'ad and Nidah

Tosafos explains that anytime a veset is dependent on a specific day such as a date of the month (15th nisan, 15th iyar, 15th sivan), the veset is established after 3 times. But anytime the veset is dependent on the passing of a certain amount of time such as veset haflagah where she creates a veset to see every 36 days, it must be 3 times of 36 days passing which would require 4 times seeing blood.
In the mishnah we find that an animal can become a mu'ad for shabbos and remain a tam for the duration of the week. Can an animal become a mu'ad for tuesdays? Rashi and Tosafos imply that an animal cannot become a mu'ad for a specific day of the week because they offer specific rationales to explain why an animal can be a mu'ad for shabbos (rashi - no work, tosafos - special clothes). They seem to understand that there is nothing special about an ordinary day of the week that we can attribute the goring to, therefore, only on shabbos where we can associate it to the actual day, would the animal become a mu'ad after just 3 times (similar to becoming a mu'ad for yom hachodesh). But, if the animal will gore on tuesdays, there is nothing special about tuesday that would make it gore, so it would not become a mu'ad until it gores 4 tuesdays in a row and creates a chazaka to gore every 7 days, starting from tuesday (similar to a veset haflagah). 
Tosafos assumes that goring every other day, is similar to a haflagah, just a very short haflagah and would require 4 times to create a chazaka. Tosafos draws a distinction between goring every other day and goring every other animal, because by goring every other animal it only takes 3 times to make a mu'ad. Tosafos seems to understand that goring every other day is similar to a haflagah where a woman would see blood every 36 days, so it will take 4 times to create a chazaka. But goring every other animal would be similar to a woman becoming a nida on (15 nisan, 15 sivan, 15 av), where she skips a month, but nonetheless the seeing is attributed to the day and therefore only takes 3 times to create a chazaka. Here too, although it skips animals, the goring is attributed to every other animal that it sees, so it only takes 3 times to create a chazaka.
In all the above cases, Tosafos assumes that Rav and Shmuel would agree (not like rashi who says that they argue about the goring every other animal that it sees). Tosafos understands that the machlokes rav and shmuel is only when the seeing of nidah is attributed to the day of the month, but it is with a di'lug - skip, such as 15th nissan, 16th iyar, 17th sivan. Even though all agree that a haflagah can only be determined after 4 times, in a case of dilug there is a machlokes.

Sunday, February 01, 2009

Baba Kama 36b - Pledging Money that is not in one's possesion

The gemara says that when one is owed money as compensation for embarrassment, and they declared that the money should be given to tzedaka, their word is binding. Why? Because the beis din serves that the "hand" of the poor, and were already zocheh it for the poor. Tosafos asks, why not say that even if beis din would not be zocheh for them, it would anyway have to be given to the aniyim because it is as if he made a vow to give tzedaka? Tosafos answers that since when he said that it should be given to aniyim, it wasn't yet in his hands, it is not binding as a neder to tzedaka. But if he would say "when i get the money, i will give it to tzedaka", Tosaofos says that he would be obligated to fulfill his neder. Tosafos then quotes Rabbeinu Chananel who seems to assume that even if he would say "it should be to tzedaka", it would be a binding neder, but he would still be able to borrow the money for the time being. But, Rav Yosef says that he was already zo'cheh for the aniyim through ma'amad shelashtan.

Both answers of Tosafos are paskened in Shulchan Aruch (Y.D. 258:8). If one is owed a debt and sya that it should be for tzedaka, it is not a binding neder, but if he says that when he collects it, he will give it to tzedaka, then it is a binding neder. BUT if the money is in the hand of the ga'bai tzedaka, or if he says it in the presence of the gabai and the ba'al chov where ma'amad shelashtan goes into effect, the gabai acquires it for the aniyim.

The Shach (18) questions why Tosafos couldn't answer simply - If it were binding as a neder, one could be matir neder and uproot the chiyuv, but since it is binding as zechiya, he can't uproot the neder? The Shach proves from here that anytime one pledges money that is in someone else's hands, he cannot be matir his neder since they will automatically be zo'cheh for the aniyim. Hataras Nedarim will only work on money that is in the hands of the pledger, but not on money that is in the hands of someone else.

Can someone retract on a pledge to a tzedaka, based on the pe'sach of "if i would have known that the market would crash, i would never have pledged so much"? Based on the shach, if the money pledged was in his own hands (or in the hands of someone who cannot be zo'cheh for aniyim i.e. goyim), he can retract. But, if it is in the hands of another jew, who can be zo'cheh for aniyim, he cannot retract.