Replacing the Lost Esrog

By: Rabbi Mendel Weinbach
Ohr Sameach

A Jew borrows a very expensive esrog from his neighbor to fulfill the mitzvah of taking the four species on Sukkos. Before he has a chance to return it, it somehow gets lost and he must now compensate the owner with another esrog. But why should he be required to purchase a similarly expensive esrog if he can provide him with a perfectly kosher one that is not of the same quality but much cheaper?

This question was dealt with by two great halachic authorities in connection with our Gemora (Bava Kamma 78) . The Sage Rava rules that if someone set aside an ox for fulfillment of his vow and that ox was stolen, the thief can replace it with a sheep and the victim cannot demand an ox because he wished to bring a sacrifice of greater quality. One opinion is that the case of the esrog is similar to this case and the ruling should be the same. A dissenting opinion is found, however, in the Responsa of Chacham Tzvi (Responsa 102). In the case of our Gemora, he points out, the thief did not cause his victim any loss of money, while he did so in the case of the esrog. That expensive esrog had the potential of being sold for a high price, while an animal set aside for sacrifice is not for sale.

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Night before Execution

It is an accepted tradition that the lengthy Tosfosim in the seventh perek of Bava Kamma were authored by the Baalei HaTosfos the night before they were murdered al pi Kiddush Hashem. While they were imprisoned, knowing that they would be killed the next day, they occupied themselves by delving into the depths of Torah. It is said that they cut their fingers and used the blood for ink. “Mi k’amcha Yisroel?”

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Insights on Bava Kamma - 76

Too late to redeem?

Tosfos (76a shechitah) asks why we consider the slaughtering of a sacrifice outside of the Temple to be unusable. Rabbi Shimon holds that an animal with a blemish can be redeemed as long as it is moving, even after slaughtering. Once the animal is slaughtered, the slit throat is a definite blemish, and should be grounds for redemption.

Tosfos answers that only blemishes that were present before an animal died are grounds for redemption, but that redemption can occur as long as the animal is still moving.

Tahi bah

The Rishonim discuss the exact meaning of this word, used to describe Rabbi Elozar’s objection to the cases offered by Rabbi Yochanan and Reish Lakish.

Rashi explains that the word is a borrowed term from wine inspection. The Gemora in Bava Basra refers to someone who smelled wine, and uses the same verb tahi . Similarly, Rashi explains that Rabbi Elozar was inspecting the statements, and delving into them, to understand them better.

The Shitah Mekubetzes, on the other hand, quotes an opinion that explains this word as a form of the more common matma - he was amazed.

Sacrificial slaughtering

Rashi states that Rabbi Elozar was challenging both Rish Lakish, who offered the case of a sacrifice with a blemish, as well as Ravin, who offered the case of a sacrifice that was successfully brought (including splashing of the blood), but not for the sake of its owner. Rashi understands Rabbi Elozar’s objection to apply even to Ravin, because even in a case where the sacrifice turned out to be valid and edible, the fact remains that as of the time of the slaughtering, it was not yet edible, since the splashing was not done.

Tosfos (76b v’halo zrika) states that Rabbi Elozar was challenging Rish Lakish, but only Rav Dimi’s version of Rabbi Yochanan’s answer – the case of the sacrifice whose blood was spilled before being splashed. Tosfos explains that their understanding of the Gemora in Chulin 80b is that the need for splashing blood can invalidate a slaughtering only if it was not ultimately done. Splashing of blood which was ultimately done will definitely make the slaughtering an edible one, retroactively.

Rashi, on the other hand, has a different text in the Gemora in Chulin, and therefore holds that even slaughtering a sacrifice which was successfully completed, including splashing the blood, does not render the slaughtering re’uyah since at the time of slaughtering, the animal was not edible.

See Pnei Yehoshua for a discussion of whether Rashi holds that Rabbi Elozar was also challenging Rav Dimi.

Just as if...

The Gemora stated that Rabbi Shimon holds a general rule of kol ha’omed - anything destined for a specific action is considered as if the action were already done. Tosfos (76b v’halo zrika) narrows the scope of Rabbi Shimon’s rule to cases where the subsequent action is mandated – a mitzvah. In that case, since the action not just may be performed, but is supposed to be performed, we can act as if it’s already done.

The halachah rules like the Chachamim. The Aruch Hashulchan infers from this topic a number of halachic conclusions. One of them is in the halachos of a shofar. The Gemora states that a shofar that is cracked is unfit. There is debate in the Rishonim on what extent of a crack invalidates a shofar, both for vertical and horizontal cracks. The Rosh (R”H 3:6) cites an opinion that any sized vertical crack (i.e., along the pathway of the air flow), no matter how small, invalidates the shofar, since the more it is blown, the larger the crack will become. The Aruch Hashulchan (O”H 586:15) states that this opinion does not invalidate it from the Torah, since we rule like the Chachamim. Rabbi Shimon can hold that a shofar that will become fully cracked is considered currently cracked, as part of his general opinion of kol ha’omed. The Chachamim, however, do not agree with this rule, and therefore would not consider the shofar already cracked. Since we do not rule like Rabbi Shimon, the invalidation must be on a Rabbinic level, lest we use a fully cracked shofar. [According to Tosfos’s limitation of Rabbi Shimon, it is debatable if Rabbi Shimon would apply kol ha’omed to a cracked shofar. There is no mitzvah of cracking the shofar, per se, but there is a mitzvah to blow in it, which would crack it further.]

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Whose Money is it?

By: Reb Yechezkel Khayyat

The Gemora (Bava Kamma 76a) discusses the opinion of Rabbi Shimon, that something that can cause someone monetary loss is tantamount to being that person’s money. The Ra’avad rules like Rabbi Shimon, and therefore considers hekdesh for which the makdish is responsible (harei alai) to be the property of the makdish. Therefore, according to the Ra’avad, if someone steals such hekdesh, he must pay full damages (including kefel and dv’h) to the makdish.

The Rambam (Geneivah 2:1), however, rules like the Chachamim, as this is the anonymous Mishna’s position. Therefore, in all cases of hekdesh articles that are stolen, the thief is not liable to pay any damages to the makdish. The Rambam first states that one who steals from hekdesh does not pay kefel, and quotes the verse yeshalem shnaim l’reyeyhu’ – he should pay double to his peer, excluding hekdesh, which is not his peer. Then, the Rambam applies this equally to all hekdesh – irrespective of the makdish’s responsibility – and quotes the verse of v’gunav mibeis ha’ish – and it was stolen from the home of the man, excluding hekdesh, which is not a man.

Tosfos (63a rayayhu) ask why the Gemora on 62b uses reyeyhu to exclude hekdesh, while our Gemora uses the verse of ha’ish to exclude hekdesh. While Tosfos explains that both are actually being learned from reyeyhu, the Lechem Mishnah states that the Rambam was implicitly addressing this question by quoting the different verses. The verse of reyeyhu is the fundamental source for excluding hekdesh from theft payments. However, the extra verse of ha’ish is the source for our ruling that this applies to all hekdesh – whether the makdish is responsible for it or not.

The Rishonim and Achronim discuss the exact formulation and rationale behind Rabbi Shimon’s opinion. Some of the facets discussed are:

1. At what point is it considered money? Does this begin while it’s in the responsible person’s property, simply because it can cause him to lose money, or is it only once it’s been removed from his property?

2. Is the obligation of one who harms such an item simply because he has caused a monetary loss, or because the holder’s responsibility created a status of money in the abstract? Another formulation of this question is – when one pays for damage to such an article, is it because of the damage done (which now includes monetary loss), or because the item is considered the property of the holder?

3. The Gemora in Pesachim (5b-6a) discusses Rabbi Shimon’s opinion in the context of chametz on Pesach. The rule established by the braisa quoted there is that the chametz of a non Jew in a Jew’s possession is considered the Jew’s only if the Jew is responsible for it. The Gemora debates whether this is a function of Rabbi Shimon’s opinion, or an exception to the ruling of the Chachamim. The exact application of this rule in the case of Chametz may depend on this debate. If chametz is a function of Rabbi Shimon’s opinion, it may be subject to the possible limitations and definitions of Rabbi Shimon’s general position on such items. If, however, it is an exception to the ruling of the Chachamim, the Torah is telling us a more sweeping statement about how we determine ownership for chametz on Pesach. One ramification of this may be how responsible for the Chametz a Jew must have in order to be obligated to remove it.

See the Ketzos Hachoshen 386:7 and Afikei Yam 2:10 for more detailed discussion of these topics.

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Freeing a Slave

by: Reb Avi Lebowitz

The Gemora (Bava Kamma 74) says that when Rabban Gamliel blinded the eye of Tavi his slave, he was “very happy.” Rashi explains that he was happy because he really wanted to emancipate him, but was unable to do so since freeing a Canaanite slave is a violation of a prohibition, but since he blinded him, he would be free.

[The Ya’avetz raises a technical problem: Rabban Gamliel certainly didn’t blind him intentionally since that would be forbidden, rather it was done accidentally (a proof to this is that he didn’t do it until now), but the Gemora says on 26b that a slave would only go free if he “intended to destroy him.”]

It seems that Rashi would disagree with the Ran (Gittin 20b b’dafei ha’rif) who says that freeing a slave follows the same rules as “lo sei’chanem,” that it is only prohibited if done for the purpose of the slave, but not if done for the need of the master. Based on the Ra”n, it should have been permitted for Rabban Gamliel to free his slave since it brings joy to himself and is not for the benefit of the slave. Can we deduce from this Rashi that he disagrees with the Ra”n and maintains that it is forbidden to emancipate a slave even for the benefit of the master?

It seems that Rashi here is not necessarily against the Ra”n (meaning that even the Ran would hold that Rabban Gamliel wouldn’t be allowed to free his slave for the purpose of giving him joy). The joy that Rabban Gamliel had was not a selfish joy; rather it is because he loved Tavi so much that he wanted to set him free for his own sake. Even the Ra”n would agree that if the only benefit to the master is that he is happy to provide benefit to the slave, that would not qualify as a selfish benefit to permit the freeing of a slave.

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