Halachah l'Moshe mi'Sinai

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The Rambam (Hilchos Mamrim 1:3) writes: There cannot be an argument regarding a halachah learned from a Halachah l’Moshe mi’Sinai. The obvious question is from our Gemora (Bava Kamma 17 - 18) where we have the disagreement between the Chachamim and Sumchos regarding the payment for the case of “pebbles.” The Chachamim maintain that the Halachah l’Moshe mi’Sinai teaches us that half damages are collected, whereas Sumchos disagrees.

The Maharitz Chayus quotes this question from the Chavos Yair (192), and suggests based on the Rambam in his explanation to a Mishna at the end of Eduyos that we have a tradition that Eliyahu Hanavi will do good for Klal Yisroel at the end of time, but there is a disagreement on the specifics. Here too, all agree that pebbles is a Halachah l’Moshe mi’Sinai that it is included in damages that one is responsible for, but they argue as to the extent of the liability.

The Gemora cites Rav Ashi inquiry: According to Sumchos, do we treat the damage caused by the force of the animal’s force the same way as the force of the animal itself? There are several approaches to understand this.

The Shitah Mekubetzes writes that since Sumchos does not agree that pebbles are learned from a Halachah l’Moshe mi’Sinai, the reason he holds that one is liable in full is purely based upon logic. Accordingly, there can be a distinction between damage caused by the animal’s force and damage caused by the force of the animal’s force.

The Rosh understands the inquiry as follows: Sumchos was uncertain if there was a Halachah l’Moshe mi’Sinai by pebbles at all. If there was one, perhaps it was coming to teach us that one is not liable to pay full damages by a case where the damage was caused by the force of the animal’s force; rather, he is only obligated to pay half.

According to both these approaches, it is evident that they did not learn like the Maharatz Chiyus.

Reb Avi Lebovitz quotes a Chasam Sofer (Beitzah 5a - pg. 20), who offers another approach. We certainly find many cases where there is a dispute regarding a Halachah l’Moshe mi’Sinai. The Rambam doesn’t mean to say that an argument cannot develop on a tradition; rather, he means to say that when there was a disagreement about a tradition and the Sages of the generation agree to one approach and reject the other – they essentially are deciding that the tradition of the one they accept is correct and the other is not. At that point, no later generation can restore the argument and rely on the tradition of the individual.

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Haman and his Daughter

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Rava inquired (Bava Kamma 17) : If an animal pounced upon a utensil but it didn’t break, and it rolled to another place and broke there, what is the halachah? Do we consider the beginning of the process, and it is regarded as if the animal itself broke the utensil (in which case the owner will be liable to pay in full), or do we look at when the utensil actual broke, and then it would be regarded as a case of “pebbles” (in which case the owner will only be liable to pay for half the damages)?

The Gemora attempts to resolve this from that which Rabbah said: If one threw a utensil from the top of a roof and someone else comes and breaks it with a stick, the second person is exempt from liability, for we can say to him (the owner of the utensil), “He broke a broken utensil.” [Evidently, Rabbah considers the beginning of the process, and that is why the utensil is regarded as broken even before it actually hits the ground and breaks!]

The Gemora rejects the proof, by saying that although it was clear to Rabbah (that we consider the beginning of the process), it was still a matter of inquiry to Rava.

Tosfos writes that if one throws a stone or shoots an arrow onto a utensil, and someone else comes and breaks the utensil first, the second person is definitely liable to pay for the damages. We cannot say in this case that “he broke a broken utensil,” for if the utensil would be considered broken immediately, there would never apply the halachah of “pebbles,” for we would always consider the utensil to be broken as soon as the pebbles shoot out from the animal. Tosfos concludes that the logical distinction between throwing a stone at a utensil and throwing the utensil itself is a simple matter.

The Rogatchover Gaon uses this Tosfos to explain a Gemora in Megillah (16a). As Haman was leading Mordechai through the streets, they passed by Haman’s house. Haman’s daughter witnessed the scene and thought that Mordechai was leading her father. She took the bowl from the bathroom and threw it on her father’s head. When she realized that it was her father, she fell off the roof and died. This explains that which is written: And Haman hurried to his house, mourning and with his head covered. He was in “mourning” on account of his daughter, and “his head was covered” because of what occurred to him.

The question is asked that the sequence is reversed!? The verse should have stated that “his head was covered” and then he was in “mourning” Why was he mourning before his head was covered?

The Rogatchover Gaon suggests the following: Immediately after Haman’s daughter threw the bowl down, she realized her mistake, and she threw herself off the roof before the bowl landed on her father’s head. According to Tosfos, who distinguishes between when the utensil was set into motion, and when the stone was set into motion, we can explain as follows: She (like the utensil) was considered dead at the beginning of her descent; however, Haman’s head was not covered until the bowl actually landed on his head. This explains why the verse mentions that he was in mourning even before his head was covered.

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Fender Bender

By: Reb Avi Lebovitz Hearos on the Daf/

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Reuven is driving behind Shimon and smashes into Shimon’s car, destroying his fender and causing $500.00 worth of damage. Shimon continues to drive home and gets into a terrible accident that completely totals his car. Reuven claims that he should not be liable for paying for the damage that he caused, because even if had he not caused the damage, it would have happened due to the later accident. Is Reuven obligated to pay?

The Reshash learns from Tosfos that Reuven is responsible. Tosfos says that although in the case of the Gemora where one throws a vessel from the roof and the other one smashes it before it hits the ground, the thrower is liable to pay and the smasher is exempt; in a case where one throws a stone at a utensil and before it hits the ground, someone else smashes it, the smasher is liable and therefore the thrower is exempt. The argument that “he broke an already broken item,” only applies to a case where the damaged item itself was thrown, not when another item was thrown at it. The logic is clear. When one throws a stone at a utensil, he has no connection to the utensil until the stone makes contact with it, so if prior to that, someone else smashes the utensil, the smasher is fully responsible.

Based on this, the Reshash says that if Reuven smashes Shimon’s vessel, but later a fire occurs and burns the broken vessel, Reuven is responsible to pay for the damage he caused. Why? Because even if Reuven would smash the vessel after the stone has been thrown, he would be obligated to pay; certainly if he broke the utensil prior to the fire heading to Shimon’s home, Reuven is liable to pay. Similarly, in the case of the car accident, Reuven would be obligated to pay, because even if at the time of the fender bender there was already a train headed right at Shimon’s car and it would definitely be destroyed, Reuven is liable for the damage he caused.

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Spine Turns into a Snake

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The Gemora (Bava Kamma 16) cites a braisa: The spine of a deceased person becomes a snake after seven years, if he does not bow down for the modim prayer.

Tosfos explains that this is measure for measure. Rav Sheishes (Brochos 12b) said that when he bowed down during Shemoneh Esrei, he would bow like a rod (in one swift motion), and when he straightened up, he would straighten up like a snake (which raises its head first and then slowly raises the rest of its body). A person’s punishment is that his spine turns into a snake.

What is behind the bowing down like a rod and straightening up like a snake?

Kollel Iyun HaDaf explains this based upon the Maharsha and the Maharal: The point of "Modim" is to show one’s humility before Hashem, Who grants a person everything he needs for his daily life. The Gemora in Sotah (9b) teaches us that Hashem originally made the snake the king of the beasts, but the snake was not grateful and it became arrogant and wanted even more. Hashem punished the snake, saying, “I originally created you to walk with an upright stature, but now that you did not humble yourself, you will walk upon your stomach.” The snake, therefore, is a symbol of the punishment that befalls a person who does not humble himself and does not recognize that everything he has is a gift from Hashem. When a person bows down, he should bow like a rod, reminding himself that there is a Master in Heaven Whose word he must obey (for a king rules with his stick; see Sotah 40a and Shabbos 52b).

When a person rises after bowing, he must remember that even when standing erect, he should not do so in an arrogant manner. The Gemora here teaches us that if a person does not bow during Modim and thereby commits the sin of the snake, by standing erect and not recognizing Hashem’s dominion; after he dies, his spine that did not bend, will turn into a snake.

Tosfos brings another explanation: The Midrash says that there is a vertebra in the spine of a person from which he is resurrected in the World to Come. This bone is so strong and hard that fire cannot consume it. And now, when that bone becomes a snake, he will not be resurrected and will therefore not live in the World to Come.

Tosfos rejects this explanation, for it is not logical to say that one will punished so harshly for committing this minor transgression, for we have learned that all of Israel has a share in the World to Come.

Rav Shamshon Raphael Hirsch wrote in a letter: Anyone who reads this Gemora finds it laughable, but Pliny says the same statement almost word for word, “After a number of years the human spine turns into a snake” Chazal, however, used this to teach a mussar lesson. To any mind it is clear that every similarly surprising statement of Chazal, if we look into it, was accepted as true by the scholars of the time.

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YAAKOV’S ACQUISITION OF CATTLE

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It is written [Breishis 30:43] regarding Yaakov Avinu: And the man increased exceedingly, and had large flocks (sheep), and maid-servants and men-servants, and camels and donkeys. It is not mentioned in the Torah that Yaakov had cattle. Why not? We see that Yaakov sent to Esav cattle, as it is written [ibid, 32:6]: And I have oxen, and donkeys and flocks, and men-servants and maid-servants; and I have sent to tell my lord, that I may find favor in your sight. A few verses later, we also see that Yaakov had cattle. It is written [ibid, v. 8]: And he divided the people that were with him, and the flocks, and the herds, and the camels, into two camps. Yaakov sent cattle to Esav, as it is written later in the same Perek. Perhaps one can answer that Yaakov acquired the cattle afterwards; if so, the question may be asked: Why didn’t he acquire cattle beforehand?

The Gemora in Yevamos (16a) relates the following incident: Yonasan the son of Hurkenas met Rabbi Akiva. He questioned him and silenced him. He asked him, “Are you the Akiva whose name is known from one end of the world to the other? You are fortunate indeed to have merited such a name, but you have not yet reached the level of an oxherd.” Rabbi Akiva replied (with humility), “I have not even reached the level of shepherds.”

It is evident from here that it is more difficult to be an oxherd than a shepherd. One does not need to be so careful when watching sheep – he has to watch that the sheep do not graze in other people’s fields. When one is watching cattle, he must be concerned that the cattle do not damage other animals or people. This is not a simple task, as the Gemora states: Rav Papa says that the half damages that an ox-owner is required to pay if his animal gores are regarded as a compensation payment, for an ordinary ox is not considered guarded in respect to these types of ‘abnormal’ damages and the owner should really be liable to pay completely for its damages. The Torah had compassion on him since his ox was not yet warned (three times) and ruled that he is only required to pay for half the damage (hence the half damages that he does pay is considered compensation).

If one takes the animals that he is entrusted to watch into a desert, a place where there are no private fields, watching sheep there is almost effortless; he does not need to be cautious at all. However, he still must be vigilant in his guarding of the cattle, lest they damage other animals or people, for it is common for there to be other animals and people in a desert.

Yaakov did not want to watch Lavan’s cattle, for he was worried that the cattle will cause damage and Lavan would not be willing to pay for the damages. He was able to tell Lavan that he does not posses the expertise necessary to watch cattle. This excuse was only possible if he did not have cattle of his own. He did not acquire cattle until after he departed Lavan’s house, for now, if his cattle would damage, he would be liable, and he would certainly compensate anyone for any damages cause by his animals. (Igrah d’kallah)

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Is it Natural for an Ox to Gore?

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It was stated (Bava Kamma 15) : Concerning the payment of half damages (which are paid when a tame ox gores another animal; if the ox did not gore three times, it is regarded as an abnormal act and the animal was not intending to inflict damage; this is called a tam), Rav Papa says: This is regarded as a compensation payment. Rav Huna the son of Rabbi Yehoshua says: The half damages are considered a fine.

The Gemora explains: Rav Papa says that the half damages are regarded as a compensation payment, for an ordinary ox is not considered guarded in respect to these types of ‘abnormal’ damages and the owner should really be liable to pay completely for its damages. The Torah had compassion on him since his ox was not yet warned (three times) and ruled that he is only required to pay for half the damage (hence the half damages that he does pay is considered compensation). Rav Huna the son of Rabbi Yehoshua says that the half damages are considered a fine, for an ordinary ox is considered guarded in respect to these types of ‘abnormal’ damages and the owner should really be exempt completely from paying for its damages. The Torah penalized him and ruled that he is required to pay half in order that he will watch his ox better in the future (hence the half damages are considered a fine).

Reb Dovid Pervarsky writes that this is not a factual dispute if ordinary oxen are accustomed to gore or not. Rather, the argument can be explained as follows: Rav Papa maintains that it is inherent in the nature of an ox to gore. Sometimes it will not gore because it does not feel the desire to gore at that time. When the animal does gore, it is not considered an abnormality at all. Rav Huna the son of Rabbi Yehoshua holds that it is not natural for an ox to gore at all; when it does gore, it is regarded as an abnormality.

Reb Dovid is not comfortable with this explanation of the argument, for the Gemora’s language is that an ordinary ox is not considered guarded; if the animal is not goring (for whatever reason), it should be considered “guarded”!?

He therefore concludes that this is the explanation: Rav Huna the son of Rabbi Yehoshua holds that it is not natural for an ox to gore at all; if it does gore, it cannot be labeled as a “damager,” since the ox was considered guarded. Rav Papa, however, maintains that it is in the nature of an ox to gore, and when it gores, it can be labeled a “damager.” This is what obligates the owner to watch his animal even though it is not accustomed to goring.

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U'bi'er

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The Gemora (Bava Kamma 14) explains that one braisa speaks of a case where a yard was set aside for both of them for the purposes of both keeping produce and their oxen (it is therefore not regarded as “the field of another,” and he would not be liable for shein and regel), whereas Rav Yosef’s braisa deals with a yard set aside for keeping produce in but not cattle, in which case, as far as shein is concerned, the yard is regarded as the yard of the damaged party (because the damager has no permission to bring his ox in).

Rabbi Zeira challenged this explanation: In the case where the yard was set aside for keeping produce in (for both of them), how can the there be liability for shein and regel when the field does not fulfill the condition of being “the field of another” (since the damager has the right to keep his produce there as well)?

Abaye said to him: Since the yard is not set aside for keeping cattle in, it may well be termed “the field of another.”

Reb Elchonon Wasserman explains the dispute as follows: It is written regarding shein: ubi’er b’sadeh acher – and it consumes in the field of another. The argument is regarding the word ubi’er. Is it in reference to the act of damaging, or is it in reference to that which is damaged?

Rabbi Zeira holds that it is in reference to that which is damaged. The produce is what is getting damaged. And since with respect to the produce, they both had permission to keep their produce in the yard, it is regarded as a jointly owned courtyard – and with respect to the damage of shein, it is considered a public domain, and the damager is exempt from liability.

Abaye, however, holds that the word ubi’er is in reference to the act of damaging. The ox is the one who committed this damage. And since the damager has no right to bring his ox into the yard, it is regarded as the “field of another,” and therefore, he would be liable.

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Kodoshim Damaging

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Rabbi Abba(Bava Kamma 13) says: If shelamim damage, one collects from their meat (which is eaten) and not from their limbs (which is burnt on the mizbe’ach).

The Ketzos Hachoshen asks: Why, even according to Rabbi Yosi HaGelili, who holds that kodshim kalim are not the property of the High, should one be liable to pay for the damages? It is forbidden to derive pleasure from this animal, and something that is forbidden to derive benefit from is regarded as if it is ownerless!?

The Minchas Chinuch notes that this question is only according to the Rishonim, who maintain that something that is forbidden to derive benefit from is regarded as if it is ownerless. However, there are Rishonim who hold that one is considered the owner on things that are forbidden for benefit; it is just that it is not regarded as being under his domain. Accordingly, one would still be liable if his korban shelamim damaged.

Reb Shimon Shkop distinguishes between two types of items that are forbidden for pleasure. There are things that the Torah requires one to destroy. Such items are considered ownerless, and one cannot betroth a woman with those items. However, there are other items that are forbidden to derive benefit from because they are designated for a mitzvah, such as a sukkah during the holiday of Sukkos, tefillin and korbanos – these items are regarded as his. One would be allowed to sell them, for that does not retract from the mitzvah – it does not contradict that which it was designated for. One would be permitted to betroth a woman with a korban. This is why he would be liable if his shelamim damaged.

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Kinyan Agav

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The Gemora (Bava Kamma 12) rules that the movable property does not need to be piled on the real property in order for the kinyan agav (by making a kinyan on the land, he automatically acquires the movable property) to be effective.

The Rishonim ask: If the halachah would be that kinyan agav is only effective if the movable property is piled on the land, why would it be necessary to use agav? The movable property should be acquired because it is resting in his courtyard!?

The Ritv”a answers: The Gemora is referring to a case where the courtyard is not protected and therefore it cannot be used to make a kinyan. That is why agav is necessary.

The Shitah Mekubetzes answers that a courtyard can acquire for a person only movable property that entered it after it became his. However, a courtyard cannot acquire property that was in it before the courtyard became his.

The Steipler Gaon writes that the Shach states this halachah only with respect to the acquisition of a courtyard without the knowledge of the owner. However, if he intends to use the courtyard to acquire the movable property which is found in it, it will be effective even if the property entered the courtyard before it became his.

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Mobile Courtyard

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The Gemora (Bava Kamma 12) states that a moving courtyard cannot effect an acquisition for its owner. The Rishonim disagree as to the reason for this. Rashi and Tosfos maintain that since the halacha that a courtyard can effect an acquisition for its owner is derived from the halacha of acquiring through one’s hand, a moving courtyard, which does not resemble to a hand (which is stationary), cannot effect an acquisition for its owner.

The Ritva and the Ran suggest a different reason for this. They say that since the courtyard can be a great distance away from the owner, it is not considered protected by the owner, and therefore it is disqualified from effecting an acquisition for the owner.

The Divrei Mishpat notes that the following case would be a difference between them: If a lost object would fall on his animal which is in his courtyard. If a mobile courtyard is excluded because it does not resemble a person’s physical hand, he will not acquire this lost object, for the animal is a moveable object. If, however, a mobile courtyard is disqualified from effecting an acquisition because it is not guarded from intrusion by the owner, here, he will acquire the lost object because the object is protected.

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Assessments

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by Reb Avi Lebovitz http://www.hearos.blogspot.com

The Gemora (Bava Kamma 11) concludes that if one steals an item and ruins it, he is not able to simply return the broken item and pay for the damage; rather, he has to pay in cash for the entire item, or replace it with an equivalent item. However, when one damages, or borrows an item and it gets damaged by accident, he can simply return the item and pay the depreciation amount. Why? Tosfos explains that when one steals an item, they immediately acquire the item by removing it from the domain of its owner, and therefore are liable to reimburse the owner for the entire item (not just the difference from the time it was stolen and the time it is returned). But, when one damages, he is only responsible for the amount that the item depreciated due to the damage, but whatever remains still belongs to the original owner. Based on this, a borrower, who is responsible if an accident happens, since he is regarded as acquiring the object when he borrows it, he therefore is responsible for the entire item.

Why do we say that a borrower is making a kinyan and acquiring the object at the time that he accepts responsibility? Just as a paid custodian is only responsible for what was stolen but he can return whatever remains and just pay the difference, a borrower should be able to do the same? Tosfos understands that since a borrower is responsible for unavoidable accidents, his responsibility cannot begin at the time that the accident occurs because one cannot be liable for a complete accident. The only way that a borrower can be responsible for an accident is because he makes a kinyan on the object when he borrows it. Based on this, there is a major difference between the liability of a (paid or unpaid) custodian and that of a borrower. A custodian is responsible for their negligence in not protecting the object, and that obligation begins at the time of the incident. A borrower, on the other hand, is not responsible for the incident, but responsible at the moment he borrows it to return the item as it is at that moment.

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Deriving Benefit from a Corpse

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By Reb Avi Lebovitz Hearos on the Daf

Tosfos (Bava Kamma 10) asks: Why do we need a special verse to exempt a person who is killed by falling in a pit? It should be included in the exposition of “and the corpse shall belong to him”!? This means that the owner of the pit is only liable when the corpse can belong to the owner of the animal. Just as we exclude an animal that is a disqualified sacrifice, which cannot belong entirely to its owner (since certain restrictions apply to it even after it is redeemed), we should exclude man as well, since it is forbidden to derive pleasure from a corpse!?

Tosfos answers that from this verse alone, I would have said that the owner of the pit is liable for damaging a gentile, since one is permitted to derive pleasure from his corpse, so we need a verse to exempt the pit owner for the death of all people.

Shulchan Aruch (Y.D. 349:1) writes that it is forbidden to derive benefit even from a gentile corpse. The Nekudas Hakesef quotes this from a Teshuvas Harashba. But, the Nikudas Hakesef points out that both our Tosfos and the Magid Mishnah hold that only a Jewish corpse is forbidden to derive pleasure from.

The Vilna Gaon proves that Tosfos is correct from David who used the foreskins from the Philistines to betroth the daughter of King Shaul. He also points out that the Rashba in his commentary on the Daf says like Tosfos.

However, the Pischei Teshuva reconciles Tosfos and the Rashba by saying that it is not Biblically forbidden, and that is why a special verse is needed to exempt the pit owner when a person is killed in a bor, but it is Rabbinically forbidden to derive pleasure from any corpse.

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