Thursday, March 05, 2009


Rabbi Chiya bar Abba (Bava Kamma 63) said in the name of Rabbi Yochanan: If a man puts forward a claim of theft (and he swore to that effect) regarding an object which had been found by him (and witnesses testify that he has stolen it himself), he must pay double payment, since it is written: Al kol aveidah asher yomar (on any lost item which he says).

The Gemora cites the Scriptural source for this halachah: Since it states: If the thief is not found ..., we conclude that the entire verse is discussing a custodian who falsely alleges theft.

Rava (elaborating on the braisa) explains the verse as follows: If it is not found as he said, but rather, he himself stole it, he must pay the double payment.

The Baal HaTurim notes that the numerical value of the words “im lo yimatzei ha’ganav” (if the thief is not found) is the same as “hu atzmo ganav” (he himself stole it).

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Monday, March 02, 2009

Placement of the Chanukah Candle

The Shulchan Aruch (H”M 418:12) and the Rambam (Nizkei Mamon 14:13) rule against Rabbi Yehudah, and hold the store owner liable for his Chanukah candle. The reasoning given is that although the store owner had license to put the candle outside, to fulfill the mitzvah of Chanukah, he still is responsible to ensure no damage comes from it.

The Gemora (Bava Kamma 62) discusses whether Rabbi Yehudah’s exclusion of liability in the case of a Chanukah candle indicates that it should be below ten tefachim. The Gemora concludes with a limit of twenty amos. There is discussion in the poskim about reconciling the two measures. The Shulchan Aruch (O”H 671:6), following the Rosh, rules that the optimum placement (l’chatchila) is below ten tefachim, but the absolute limit (b’dieved) is twenty amos. The Gr”a explains that even though the Gemora deflected the proof from the Mishna, we follow the straightforward implication of the Mishna. The Rambam (Chanuka 4:7) only mentions the measure of twenty amos. The Rambam understood that the two measures are a dispute, and ruled like the opinion of twenty amos. The Rambam therefore could have held the store owner liable simply because he should have placed the candle higher, but nonetheless made the more fundamental statement that performing a mitzvah does not exempt a person from damages. This statement is a more general one, and has implications in other cases, as the Gr”a points out (H”M 418:28). The Shaarei Teshuva (O”H 761:8) points out that the Chachamim and Rabbi Yehudah’s dispute, as detailed in other sources, does not relate to different opinions on the location of the Chanukah candle, but rather on this fundamental question of exemption due to religious activity.

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Taiku in Monetary Halachah

Our Gemora (Bava Kamma 62) contains two instances of Taiku – an unresolved question. Taiku’s are very common throughout Shas, and are generally considered a full fledged doubt when deciding halachah. However, when there is a taiku in issues of monetary halachah, the Rishonim are of various opinions how to rule. Rav Hai is quoted by the Rosh (paragraph 16) and Tosfos (62a, Asu), as saying that in any monetary case that is left as a taiku, the two parties split the money in question. In our case, that would mean that the alleged damager would pay half the claimed amount, after the victim swore. The Rosh, Rif, and Ri, however, hold that no money can be extracted in a taiku case, since money can only be taken from someone with a proof. The Rambam (Chovel uMazik 8:7) holds that money cannot be extracted, but if the victim seizes the money, we do not take it away from him. The Shulchan Aruch (388:1) rules like the Rambam.

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Takkanas Nigzal

The Gemora (daf yomi - Bava Kamma 62) lists a number of diverse cases where the Sages applied the rule for the robbery victim, without clarifying in exactly what circumstances the rule was applied, nor why. There is discussion in the Rishonim about what the parameters for these cases are. Rabbeinu Tam (Tosfos 62a asu) states that the debate in the case of an informer is only when the informer claims with certainty that he did not cause as large a loss as the victim claims. However, when the informer is uncertain, then there’s no question that the victim can use the rule of the robbery victim, and collect with an oath. The Ri, on the other hand, states that the Gemora is currently following the discussion of applying the robbery victim rule to fire damages of embedded items. In that case, the damager obviously has no knowledge how much he damaged, so similarly the discussion by an informer must be also in the case of the informer not knowing how much damage he caused.

According to the Ri, the application of takanas nigzal is only due to the fact that the damager doesn’t know how much the damage is. If the damager claims with certainty a lesser amount, the usual procedure must be followed, and the victim must bring proofs. The Gemora is only using the case of nigzal as a borrowed term, to apply in a case where the damager cannot counter claim with certainty. However, Rabbeinu Tam applies the takanas nigzal even to cases where the damager claims a lesser amount with certainty. The application must be a more direct analogy to the robbery case. In the robbery case, the robber is not able to swear, since we punish his status as a robber by invalidating his oath. Therefore, the Sages placed that oath on the victim, to allow him to collect. Similarly, Rabbeinu Tam holds that one who lights a fire – a gross negligence, and a very direct form of damage – and an informer – a very severe and dangerous form of damage – are punished for their crime by allowing the victim to collect with an oath. Rabbeinu Tam would therefore equally apply the takanas nigzal to any fire damages, even in the simple non tamun case that the Chachamim discuss. [See the Rosh paragraph 16, who mentions both reasons by the case of fire.]

The Pnei Yehoshua points out that the Gemora flow seems to indicate Rabbeinu Tam’s approach is correct. The Gemora concludes the discussion of takanas nigzal with a seeming non sequitur – the distinction between a chamsan and gazlan. The Pnei Yehoshua explains that the Gemora was discussing different types of criminals, and the sanctions put on them by takanas nigzal, and therefore concluded with a statement about two types of criminals who cause another person monetary loss.

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Burning Hidden Things


The Shulchan Aruch (H”M, 418:13) rules like the Chachamim (Bava Kamma 62), that one who burns a fire is not liable for embedded items (tamun). As the braisa details, this is only true if the fire was lit in one’s own property, and then spread to someone else’s. A fire lit in someone else’s property obligates the burner in the damages for embedded objects. This is due to the fact that the verse which excludes tamun is in the basic case of a fire described in the Torah – when a fire exited one’s property, and then damaged. However, liability for tamun in the case of a fire lit elsewhere is only for items normally embedded – and for which the burner should have considered may be burned. Therefore, in a field, he is only liable for farm implements, whereas in a house, he is liable for all items.

Which Cases?

The Gemora earlier in B”K (22-23), in the topic of whether a fire causes liability as the burner’s arrows or property, discussed the case of tamun. The Gemora stated that according to Rabbi Yochanan (whose opinion is the halachah), who holds that a fire is like the burner’s arrows, there seems to be no reason to exclude tamun: if a person shot an arrow, he’s liable for any damages, even on embedded items. Therefore, the Gemora states that Rabbi Yochanan only excludes liability for tamun when kalu lo chitzav – the direct effect of the fire has stopped (e.g., by being blunted by a wall, which then collapsed). In that case, the liability is only for the property aspect of the fire, since he should have put up a firewall to stop it from spreading. Even though Rabbi Yochanan holds that a fire causes liability as an arrow of the burner, Rabbi Yochanan agrees that a fire can also cause liability as the burner’s property, and would be considered so if the burner could have stopped the fire and didn’t. Therefore, the Shulchan Aruch rules that the exclusion of tamun only applies to a fire which was blunted by a wall.

The Gr”a (418:33), however, claims that this understanding of the Gemora on 23 is incorrect, and is not the way the Rambam and the Rif read it. Instead, the Gr”a says that when the Gemora clarified that Rabbi Yochanan agrees to a property aspect of a fire, the Gemora was reversing the limitation of tamun to kalu lo chitzav. The Gemora’s original question was how a person could be exempt for paying for tamun damages. The Gemora here states that a burner is liable for tamun when he lights the fire in the grain owner’s property. However, just as when someone fires an arrow, wherever it goes is considered his action, when someone lights a fire anywhere, wherever it goes should be considered his lighting, and therefore, all cases of tamun should be liable. The Gemora on 23 first answered that when the wall blunted the fire, it’s not an arrow anymore. However, the Gemora then reverses this, and states that a fire is different than an arrow, because a fire can be interrupted in mid flight. Therefore, the verse’s exclusion of tamun is only when the fault of the burner was simply not stopping the fire. The Gr”a therefore disputes the exception that the Shulchan Aruch places on the limitation of tamun, and instead holds that the burner of a fire is always not liable for tamun, as long as he lit the fire in his own property, and it spread elsewhere. [See Gra on B”K 23, note 1 for a different reading of the Gemora there.]

Grain coating

The Shitah quotes Rabbi Yehonosan who points out that we must explain that the case of a barley pile coated in wheat is a case where the field owner only allowed barley. If this would not be the case, there would be no reason to exempt him from paying for the wheat covering, which he allowed and saw. If so, the need for this case – even though we already learned the case of bringing a full wheat pile when only allowed to bring in barley – is to teach us that if the owner only allowed barley, he is not even obligated in the small difference that a wheat covering adds.

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