Thursday, February 26, 2009

Evaluations, Deducting the Food and Black Shoes

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The Gemora (Bava Kamma 59a) explains Rabbi Yishmael to mean that we evaluate the damages based on the best of anticipation. How is this evaluated? It is the value of the field at the time that the produce would have matured (at the harvest time).

Reb Meir Simcha writes that although we learned that if an animal damages in a public domain through shein or regel, he is liable to pay for what he benefitted, this is not a compensatory payment for the damages, for the Torah teaches us that one is exempt from paying for shein or regel in a public domain. He is paying, not because he is a damages; but rather because he is regarded as a debtor to the owner of the field. Accordingly, he would not pay according to the anticipated value of the produce at the time of the harvest either, for that is a halachah which applies only by a damager.

Deducting the Food

Rabbi Yosi said: If one caused a woman to miscarry, deduct the fees of the midwife (that the husband would have paid in order for someone to help his wife with the delivery). [The defendant saved the husband money which he potentially would have paid.] Ben Azzai says: Deduct (the extra) food (which the husband would have been required to provide for her during the pregnancy).

The Gemora notes: The one who says to deduct the fees for the midwife would certainly deduct food, but the one who says to deduct the food would not necessarily hold to deduct the fees for the midwife, as the husband might say, “My wife is proficient at giving birth and does not need a midwife.”

The Rashba quotes Rabbeinu Tam that the food we are discussing is the food that the woman would eat after the birth of her child, for then she requires special sweet food.

Another explanation is that we are referring to the sustenance of the child, which the father would have been required to provide.

Accordingly, the Raavad explains that we would deduct the cost of the child’s food for six years, for it is until that age that the father has an obligation to provide for his child.

The Rashba asks that if so, it would emerge that the cost of the food (for six years) would be more than the worth of the child, and what would the attacker pay?

Black Shoes

The Gemora relates an incident: Eliezer the young one once put on a pair of black shoes (which was the common practice among mourners) and stood in the market place of Nehardea. When the officers of the house of the Exilarch found him there, they asked him, “Why are you wearing black shoes?” He said to them, “It is because I am mourning on the destruction of Yerushalayim.” They asked him, “Are you such an important person (like a Torah scholar) that you would mourn over Yerushalayim?” Considering this to be haughtiness on his part, they took him and placed him in prison.

Tosfos comments that it would appear from this story that it was not the norm to wear black shoes.

It is also apparent like this from a Gemora in Taanis (22a), where Rav Broka asked a Jewish prison warden: Why don’t you have tzitzis on your garment and why do you wear black shoes, unlike other Jews?” The man answered, “I mix with non-Jews and want to conceal my Jewish identity from them. In this way when I hear that the government is plotting against the Jews, I run to tell the rabbis that they may pray and nullify the decree.”

Tosfos challenges this from a Gemora in Beitzah (15a) that indicates the opposite. The Mishna rules that it is forbidden to send a white shoe to someone during the Intermediate Days of Yom Tov because we are concerned that an effort will be made to blacken them in a manner that is forbidden. Evidently, it was common practice to wear black shoes!?

Rabbeinu Tam answers that Jews did wear black shoes, but the shoelaces were white. Eliezer the young one added black laces to his black shoes as an expression of mourning and the prison warden did the same in order not to be recognized as a Jew.

Tosfos concludes that this is the reason why the Gemora in Sanhedrin (74b) rules that during a time when the idolaters are trying to force the Jewish people to assimilate and convert to their religion, it is even forbidden to wear shoelaces like those of non-Jews, and it is obligatory for a Jew to die rather than comply with their oppressors instructions to the contrary. This is further proof that the Jewish people’s shoelaces were of a color different than that of their non-Jewish neighbors.

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Wednesday, February 25, 2009

Chasing Away a Lion

By: Rabbi Avrohom Adler

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The Mishna had stated: If it fell into a garden and benefitted from it, he must pay for what it benefitted.

Rav said (Bava Kamma 58a) that the Mishna’s ruling does not only apply if the animal eats, and therefore pays what it benefited. One might think that if it fell and was struck by the produce (reducing the impact of the fall) that the produce which was damaged should be akin to a case of chasing away a lion from his friend’s possessions (for the owner of the produce is doing a mitzvah by saving his fellow’s animal from injury), and therefore he should not even have to pay what he benefited. This is why the Mishna says that even in a case where the animal fell, the owner must pay for its benefit.

The Gemora asks: Indeed, why don’t we say that this is akin to a case of chasing away a lion from his friend’s possessions (where the friend does not have to pay for the chasing)?

The Gemora answers: The case of chasing away the lion was done (knowingly and) willingly, unlike the produce acting as a cushion that was not done with the consent of the owner of the produce.

Alternatively, the Gemora answers: When one chases away a lion, he does not incur a loss, as opposed to this case where he did incur a loss (as his produce was crushed by the animal’s fall).

Tosfos rules that the lion chaser is not entitled for compensation only in cases where it is not definite that the lion will cause a loss, for instance, where the lion is far away from the sheep, but he is concerned that it might come closer. However, if he would chase away the lion when the damage is imminent, for instance, where the sheep is already in the mouth of the lion, he is entitled for compensation.

Tosfos cites several proofs for this. One of the proofs is from a Gemora in Bava Metzia (31b) which rules that one who is returning a lost article is entitled to be compensated for his time. This, explains Tosfos, is because of the fact that if the finder will not get involved with the lost article, it will cause a definite loss to the owner.

The Rashba disagrees with the proof: He says that the only time he is not entitled to be compensated is if he gets involved willingly. By the case of returning a lost article, he has no choice, for the Torah commands him to pick it up and return it. The Torah does not instruct people to lose their own money in order to return someone else’s.

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Sunday, February 22, 2009

Laws of Heaven

By: Rabbi Avrohom Adler

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The Gemora (Bava Kamma 56) cites a Mishna: If one sends out a fire in the hands of a deaf-mute, an imbecile or a minor (and it consequently burned someone’s haystack), he is not liable to pay according to the laws of man, but he is liable according to the laws of Heaven. If, however, he sent out the fire in the hands of a competent person, the competent person is liable to pay for the damages.

It would seem that in the case where the sender sent the fire with a competent person, the sender is not liable at all, even under the laws of Heaven!

The Ram”a (C”M: 32:2) rules that if one sends out false witnesses to testify against someone, and they cause that fellow a loss, the sender is not liable at all, even under the laws of Heaven. This is because we say that there cannot be a shliach to commit a transgression.

The Sha”ch disagrees and maintains that the sender will be liable to pay under the laws of Heaven. He explains the distinction between the two cases. The sender will always be liable under the laws of Heaven. The only reason that the sender is not required to pay at all in the case of the fire is because once the competent person is liable to pay, there is no place for the sender to be liable as well!

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Tov in the Luchos

By: Rabbi Avi Lebovitz

Rabbi Chanina ben Agil asked Rabbi Chiya bar Abba: Why do the first Commandments not have the word “good” in it, and the second Commandments do have the word “good” in it?

He replied: Before asking me why it says “good,” ask me if it says “good,” as I don’t know whether it says this or not. Go ask Rabbi Tanchum bar Chanilai, who used to learn from Rabbi Yehoshua ben Levi, who was an expert in Aggadic teachings.

When he went to Rabbi Tanchum, Rabbi Tanchum said: I did not hear anything from Rabbi Yehoshua ben Levi about this matter. However, Shmuel bar Nachum, the uncle of Rabbi Acha bar Rabbi Chanina, and some say the maternal grandfather of Rabbi Acha bar Rabbi Chanina, said: Being that the first ones were going to be broken (by Moshe, they did not contain the word “good”).

The Gemora asks: Why is this a reason that they should not contain the word “good”?

Rav Ashi said: Heaven forbid, this would mean that goodness would stop for the Jewish people.

Rashi explains that the Gemora is making reference to the term “tov” in the mitzvah of honoring one’s father and mother.

The Maharatz Chayus is bothered by the very difficult question: How is it that the Tannaim were not familiar with the text of the Ten Commandments, until it was confirmed by Rabbi Tanchum? Although Tosfos in Bava Basra writes that there were some who were not fluent in the Scriptural verses, it seems strange to say that they didn't know the Aseres Hadibros!?

The Maharatz Chayus 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. Rabbi Tanchum had a tradition that it was in fact the case, to which the Gemora 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 Gemora is making reference to a Medrash where Hashem says to Moshe that He is going to give a second set of luchos, to which Moshe reacts with joy by saying “Tov li toras pichah me’alfei zahav v’chasef” – Torah is more precious to me that thousands of gold and silver.

Why did he only express this happiness by the second luchos, and not the first? On that the Gemora 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 Gemora, it certainly seems to indicate 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 honoring one’s father and mother, it says “like Hashem your God commanded you,” which Rashi interprets as a reference back to Marah 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 Marah that he is our personal doctor – “ki ani Hashem rof’echah.” Unlike a physician who just heals the sick, Hashem is our "family doctor" who is just as interested in providing us with preventive medicine as He is with remedies for illness. In the second luchos, Hashem wanted to remind Klal Yisroel that committing transgressions (such as the golden calf) forces Him to bring upon us illnesses, and then He demonstrates to us that He has the power to heal. He much prefers avoiding illness in the first place by our commitment to His Torah.

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Cup Should be Whole

By: Rabbi Avrohom Adler

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The Gemora (Bava Kamma 54) explains: It is written: And the carcass shall be his. This implies (that the pit owner would be liable to pay for) all things that are subject to death.

The Gemora asks: If so, whether according to the Chachamim who exclude utensils or according to Rabbi Yehudah who includes utensils, are utensils objects that are subject to death?

The Gemora answers: It may be said that their breaking is their death.

It is written in the Sefer Hayashar in the name of the Gaonim that a cup of blessing (the cup of wine over which Birchas Hamazon is recited) must be whole; it cannot be broken. It cannot be chipped at all. This is what the Gemora Brochos (51a) means when it states that the cup of blessing must be chai (alive). “Alive” means that it is whole. This is based upon our Gemora which states that the breakage of a utensil is equivalent to its death.

The Olas Tamid, however, disagrees and holds that as long as the cup can stand on its base, it is qualified to be used, save for the fact that there is a mitzvah to beautify the mitzvah (and because of that, it is preferable not to have any cracks in it whatsoever).

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Insights to Bava Kamma Daf 53

Halachic conclusion in Rav and Shmuel’s dispute

Partners in damage

Half vs. Full damage

Filling in missing damages

Pesulei Hamukdashim

Halachic conclusion in Rav and Shmuel’s dispute

The Rif says that even though we generally hold like Shmuel in monetary halachah, in this case we hold like Rav, since the Gemora brought a braisa that supports Rav, and the Gemora had a number of Amoraim who tried to explain the other braisa according to Rav, indicating they also agree with Rav.

The Rashba, however, states that this is not enough to make an exception to the rule that the halachah is like Shmuel in monetary issues.

The Rambam (Nizkei Mamon 12:18) has an unclear opinion on this case. There are varying texts, but our standard text states the following categories:
1. If the ox fell into the pit forwards, the owner of the pit is liable
2. If the ox fell into the pit backwards, the owner of the pit is not liable
3. If the ox fell forward outside of the pit, the court doesn’t get involved, but if the ox’s owner seized assets of the pit’s owner, we don’t take them away
4. If the ox fell backwards outside of the pit, the owner of the pit is not liable

See the Raavad and Lechem Mishneh for a lengthy discussion of the correct text and explanation of the Rambam’s position on this dispute.

The Shulhan Aruch (HM 410:31) rules like Shmuel.

Partners in damage

Chachamim’s opinion

The Gemora discusses Rabbi Nassan’s opinion at length, but does not offer much detail on the Chachamim’s position. The Rishonim discuss how much damage the owner of a mu’ad ox that pushes an ox into a pit (the first braisa) pays according to the Chachamim. The Re’ah states that he only pays half, as he only did half damage. Rashi, however, states that he pays full damages, since the mu’ad ox was the only damager, according to Chachamim. However, in the case of two oxen that damage together, each would only pay half, even according to the Chachamim, as they both actively damaged.

Half vs. Full damage

Tosfos (53b, Ha k’rabanan) points out that the continuation of the Gemora on 53b seems to indicate that the correct understanding of Rabbi Nassan is that both damagers do full damage. Tosfos proves this from the fact that the Gemora applies Rabbi Nassan to the case of two oxen, one of which is not liable, due to its pesulei hamukdashim status. If Rabbi Nassan only obligated the owner of the pit disproportionately because the carcass was found in his pit, this would not apply to two oxen that jointly damage.

Hagahos Maimoni (Nizkei Mamon, 12:3) brings a responsum from R. Meir Mirotenburg who distinguishes between an ox and pit partnership, where the pit was the junior passive partner, and two oxen, where both are active partners. Even if the correct understanding in the case of the pit would be half damages, in the case of two oxen, both would be fully responsible.

A person’s contribution

If a person and ox kill together, the Gemora states they are both liable. Tosfos (53b L’inyan kofer) asks from the Gemora in Sanhedrin, where all agree that if ten people hit a person with ten sticks simultaneously, and he dies, that none are liable. In this case as well, why not say that the person and ox are not liable, since they killed together?

Tosfos answers that the case here is that they did it sequentially.

The Rashba answers that in Sanhedrin, each person did a separate action, the combination of which killed the person, and therefore no one is liable. Here, however, both the person and ox pushed the person in one act, and therefore both are liable.

Tosfos (53b Shor) raises the issue of a person’s intent. If a person intended to damage the ox, the owner of the pit – who was passive in the damages – should not be liable, just as an owner of a fire would not be liable if someone intentionally burned an object in a fire. However, if the person did not intend to damage, how can he be liable for the four non-nezek categories of damages, including embarrassment (boshes), since boshes is only incurred when done intentionally?

Tosfos answers that the person didn’t intentionally push the person in, but knew about it (and presumably was pleased) before the person fell into the pit. He is therefore liable for boshes.

The Shita Mekubetzes answers that it’s possible for the person to have intent to embarrass the pushed person, but not to have pushed him into the pit.

The Rashba states that the four categories are including nezek, but not including boshes. Even though the ox is liable for nezek, it is not liable for the others, and therefore the Gemora states it’s not liable for the four as a whole.

The Ketzos Hachoshen discusses what the halachah is in a case where the person, along with an ox, intentionally pushed an ox into a pit. On the one hand, the owner of the pit can claim (as explained in the Tosfos above) that he is not a partner to the person, since the person did it intentionally. On the other hand, the ox’s owner can claim that the pit is a partner to his damage, as is always the case when an ox pushes another ox into a pit. Similarly, the person can claim that the ox is a partner to the damages, even though he did it intentionally. He suggests that the person must pay half, and the ox and pit’s owners each pay one quarter, but says that from Tosfos it seems that whenever the person intentionally damaged, he pays all the damages himself.

Filling in missing damages

The Tur (HM 410) quotes the Rema, who extends the opinion of Rabbi Nassan to a case where two parties damaged, both are liable, but one cannot pay or has run away. Even in this case, states the Rema, the remaining party must pay the full damages.

The Tur disagrees, and states that Rabbi Nassan only said the partner must fill in damages if the other damager is not liable for some halachic reason. If, however, he’s liable, but just is not technically paying, this does not obligate the other partner. This has ramifications nowadays for a tam that pushed an animal into a pit. Both parties are responsible, but nowadays, we don’t collect tam damages, as they are a fine. According to the Rema, the owner of the pit would have to pay full damages.

The Taz quotes the Maharshal, who discusses a case where partners (one Jewish and one non-Jewish) overcharged a Jewish customer. Both partners are liable, but only the Jewish one is subject to our court system. Even according to the Tur, the Jewish partner will be fully liable. This is due to two distinctions from the Rema’s case:

1. In the Rema’s case, the partner who is not paying could theoretically pay, if he returned and had money. However, in this case, the non-Jewish partner will never pay.
2. In this case, the Jewish customer relied on the Jewish partner to take care of not overcharging him, and therefore the full liability falls on him.

However, the Maharshal adds that if it’s a case that would make the non-Jewish partner liable, even in the secular court system, then this becomes the same as the Rema’s case.

See Rabbi Akiva Eiger on this daf for a discussion of two false witnesses who recant, one of which has no money to pay.

Pesulei Hamukdashim

The R’ah points out that the phrase pesulei hamukdashim on 53b is used to mean two different types of animals. In the first instance, where the ox that’s pesulei hamukdashim is the damager, it means a blemished sacrifice, which has not yet been redeemed, and therefore, he is not liable for damages. However, in the second instance, where the ox that’s pesulei hamukdashim falls into the pit, it means a blemished sacrifice, which has been redeemed, but nonetheless is not eligible for damages since the carcass is unusable, since redemption is only to enable human consumption of the meat.

The Shita Mekubetzes raises an interesting question from the statement of the Gemora that a pit’s owner only is liable if the owner of the ox can use the carcass. If so, why do we need a special exclusion for the case of a person killed – the corpse is not usable for anything, since its benefit is forbidden?

The Shita quotes the Ritz’s answer, which is that the exlusion of “v’hames yihyeh lo” is only applicable to the items explicitly mentioned in the Torah – animals – and not to other items logically learned from them. See the Shita for other answers.


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