Destined to Give an Account

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The Mishna in Pirkei Avos (4:29) states: Against your will you were created; against your will you were born; against your will you live; against your will you die; and against your will you are destined to give an account before the King who rules over kings, the Holy One, Blessed be He.

The question is obvious: If a person is living against his will, why is he forced to give an account of his actions?

The Vilna Gaon explains this based upon the Mishna: If someone (owned fields surrounding the field of his friend and) put up fences around three sides (separating their fields), we do not make the owner of the inner field pay (for the cost of building the fence, for it does not really help him, since his field is left opened on one side). Rabbi Yosi says: If the one being surrounded makes the fourth wall, he is obligated to pay his share in all of the walls (for he has demonstrated that he approves of the building of the other three sides). If the owner of the outer property surrounds the inner owner on three sides, the inner owner is not obligated to defray the cost of the building because he has not benefitted, for the fourth side is completely opened. He also can claim that he did not request this at all. However, if the inner owner builds the fourth wall, he has revealed that he approves of the building of the three walls, and he therefore is obligated to contribute to the cost of all four sides of the fence.

So too, explains the Gaon, Hashem fences a person on three sides: A person is created; he is born; and he is living against his will. Accordingly, he is not obligated to pay for it (to give an account of his deeds). But when a person becomes ill and is close to dying, he makes every effort available to him in order to stay alive. He will spend any amount of money for doctors, medicines and cures. He will cry out with all his might that he wants to live. This is as if he is fencing the fourth wall. He is demonstrating that although he was created and born against his will, he now approves and is willingly living. He therefore is destined to give an account of his actions.

The Netziv recounted that one time the students of the Gaon were sitting around the Gaon’s table when he said over this explanation. The Dubno Maggid was there as well, and upon hearing the interpretation, offered the following parable: A man had two daughters; one of them was extremely ugly and the other one had a very bad temperament. No man wanted to marry them until the following marriage was suggested: A blind man should marry the ugly one, and a deaf one should marry the one with the dire disposition, for he will not hear her yelling. The father of the girls accepted and his daughters were married off. Many years passed and the couples prospered. They became wealthy and built a beautiful family. One day an expert doctor arrived in the city and told them that he is capable of healing both the blind man and the deaf one. They agreed on a price and the procedures were successful. However, to the dismay of the couples, strife and arguments between the men and their spouses immediately flared up. The ex-blind man saw the hideous appearance of his wife and the ex-deaf man heard his wife’s constant nagging and yelling.

When the doctor approached them with his bill, they refused to pay him, claiming that he made it worse for them, not better. The case was brought to court and the judge inquired of the doctor if it was possible for him to undo that which was done. He replied that this would no problem at all for him to do. The judge ruled that since these men were better off before the doctor’s involvement in their life, he must make them blind and deaf again. When the men heard the ruling, they proclaimed that they would rather keep their sight and their hearing. Upon hearing this, the judge reversed his ruling and said that they now have revealed that they are happy with the improvement, and they are obligated to pay the doctor for his services.

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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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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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Spending Money for a Mitzvah

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Tosfos (Bava Kamma 9b) writes that it is evident from our Gemora that a person is not obligated to give up all of his possessions in order to fulfill a mitzvah, and even for a mitzvah that will pass in time, such as an esrog. It is further evident from the conclusion of the Gemora that one is not even obligated to give up a third of his possessions in order to fulfill a mitzvah. And furthermore, it is said regarding charity: One who gives liberally to charity should not give more than a fifth of his money, for then, he will be forced to beg for support himself.

All Mitzvos

The Rosh writes that this halacha applies by all mitzvos; one should not spend more than a fifth of his wealth on any specific mitzva, such as esrog or lulav. The Rambam and Rema seem to rule accordingly.

Why not Spend?

The Rishonim ask: Why would someone be exempt from performing a mitzvah just because it costs more than a fifth of his wealth? The Ra’avad answers that this is similar to halacha that one should make his Shabbos like an ordinary weekday, and not be forced to be supported from charity. This is because poverty is regarded as death, and one is not obligated to give up his life for an ordinary mitzvah.

The Biur Halachah writes (in his explanation of an opinion from the Beis Yosef) that not all mitzvos are compared to charity, for charity is a mitzvah that will not pass in time, and even if the poor people are before him, they can be supported by another person. That is why one would not be obligated to spend more than a tenth of his possessions. However, with respect to a mitzvah that will pass in time, it is possible that there would be an obligation to spend more than a tenth.

Reb Yaakov Emden asks: Why isn’t there an obligation to spend more for a positive commandment? Did we not learn regarding one who does not want to fulfill a positive commandment – we beat him until his soul departs him? Do we treat his money stricter than his life?

The Maharitz Chayus answers that we only beat him until his soul departs him when he is rebelling against the fulfillment of mitzvos; otherwise, we do not beat him, and he would not be required to spend all his money for it.

Lo Sa’aseh is Different

The Ra’avad adds that this halacha applies only to a positive commandment; however, one would be required to spend his entire wealth in order not to transgress a negative precept.

Must he Spend a Fifth?

The Gemora (Kesuvos 50a) states that one should not spend more than a fifth of his wealth to fulfill a mitzvah; is one halachically required to spend up to that amount, or is it only regarded as a mitzvah?

The Beis Yosef (Y”D; 249) writes that it is considered a mitzvah in the preferable manner if one spends up to a fifth of his wealth in order to perform a mitzvah. The Beis Yosef adds that although one can imply from the Gemora that it is not even a mitzvah to spend that amount because the Gemora states: One who spends liberally should not give more than a fifth of his wealth; however, even less than that would be regarded as spending liberally, and there would be no mitzvah whatsoever to spend that amount. Nevertheless, there is a Yerushalmi in Pe’ah that seems to indicate that there is a mitzvah to spend up to one-fifth of his wealth for a mitzvah.

In the sefer Ahavas Chesed, the Chafetz Chaim cites a Rambam in his explanation to the Mishnayos, who writes that there is a halachic obligation to spend up to one-fifth of one’s wealth for charity. He asks form our Gemora, which would seem to indicate that there is no such obligation. He answers that our Gemora is discussing a case where the poor people are not present and someone is searching to find them in order to give them charity. In such a situation, there is not even a mitzvah to give up to one-fifth. However, the Yerushalmi and the Rambam are speaking about a case where the poor person is in front of you; then, there would be a halachic obligation to give up to one-fifth.

Spending More than a Fifth

What if one wants to spend more than a fifth? Is he allowed to? It is evident from the Rambam in his explanation to the Mishnayos that it is regarded as virtuous (midas chassidus) for one to spend more than a fifth. However, it can be inferred from the Rambam in halachos that one should not spend more than a fifth of his wealth on a mitzvah.

The Chafetz Chaim reconciles the two rulings of the Rambam in the same manner as before. If the poor person is present, it would be regarded as midas chassidus to spend more than a fifth, and that is what the Rambam in his explanation to the Mishnayos is discussing. However, when the poor people are not present and one is chasing after them, he should not spend more than a fifth.

The Shitah Mekubetzes writes that one is permitted to spend more than a fifth of his wealth if it is to support the studying of Torah. The Ahavas Chesed explains the reasoning for this. One who supports another fellow to learn Torah is creating a partnership with him; the supporter receives a reward together with the one who is learning the Torah. One is permitted to purchase this reward for himself even if it will cost him more than a fifth.

Reb Moshe Feinstein (Igros Moshe (Y”D, 4:37) rules that this is correct only if the supporter specifically negotiates with the one studying Torah to create a partnership of Yissochar and Zevulun. However, if the provider is just donating money to support Torah, he is not permitted to give more than a fifth.

The Ibn Ezra in Mishlei (4:7) writes that one is permitted to spend more than a fifth of his wealth in order to study Torah himself. The Chafetz Chaim in Likutei Halachos (Yoma 12a) also rules like that. However, the Netziv in the Shiltos states that this is a matter of dispute between two Amoraim. The Gemora in Eruvin cites the verse that Torah is not in the Heavens. Rav Avdimi says: If it would be in the heavens, one would be obligated to go there and learn. It is evident that one would be forced to spend more than a fifth of his wealth to study Torah, for otherwise, he could claim that it costs too much to travel to the Heaven. However, Rava disagrees regarding the interpretation of that verse, and according to him, one would not be allowed to spend more than a fifth in order to study Torah.

The Rema (Y”D, 249:1) seems to hold that one can give away more than one-fifth of his wealth to charity right before he dies. It is brought in the name of Rabbeinu Yonah that even then, he should not.

It is written in Ahavas Chesed that one who is a free-spender in regards to himself and his family, i.e., he splurges on expensive clothing, builds for himself a fancy mansion and generally leads a luxurious lifestyle; it is permitted for him to give to charity more than a fifth of his wealth.

Some say that if one finds himself in dire straits, he is permitted to spend more than a fifth with the intention that it should be on account of this deed that he will merit a salvation. It is brought in the name of the Bnei Yissoschar that one who requires atonement on a specific sin is also permitted to give away more than a fifth.

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Paying Kofer

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The Gemora (Bava Kamma 4a) explained the Mishna according to Rav as follows: The nature of ox, that it pays kofer (if the ox kills a person, the owner is liable to pay a kofer payment), is not the same as the nature of a person, who does not pay kofer (and therefore, if the Torah would only write that one is liable for an ox, we would not necessarily know that one is liable for his own damaging).

Tosfos asks: Why is the fact that an ox pays kofer regarded as a stringency? The reason why a person does not pay kofer when he kills someone is because of the principle of kim leih bid’rabbah minei - (whenever someone is deserving of two punishments, he receives the one which is more severe). And since a man is executed for killing another man, he is not required to pay the kofer payment. It emerges that not paying the kofer is not a leniency, but rather, it is due to a stringency, namely – that he is put to death!?

The Riva answers that a person would not pay kofer even if he would not be executed. This would be in a case of an accidental killing.

The Darchei Dovid explains: Although this is also a type of kim leih bid’rabbah minei; whenever someone accidentally does something - and this same action, if it would have been done intentionally, would have exempted him from a monetary payment – it exempts him from the payment in this case as well; nevertheless, it must be regarded as a lenient ruling, for the bottom line is that he is not executed and he is not obligated to pay anything.

Alternatively, Tosfos answers that he is not exempt from the kofer payment due to kim leih bid’rabbah minei.

The Maharam explains: The principle of kim leih bid’rabbah minei only applies when he committed an action that he deserves to be executed for, and simultaneously, he does something else that he is required to pay money for. However, in our case, where a man killed someone, the punishment of execution and the kofer payment are both coming for the same reason. Kim leih bid’rabbah minei will not apply here.

The Reshash explains Tosfos to mean that the principle of kim leih bid’rabbah minei does not apply in this case because the kofer payment serves as an atonement for the killing. Kim leih bid’rabbah minei exempts a money obligation which is a payment because of compensation; however, it does not exempt payments on account of forgiveness.

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Uncertainty regarding Liability by Damages

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The Gemora (Bava Kamma 3a) asks: Why didn’t the Torah just write v’shilach, which connotes both shein and regel (which the Gemora proceeds to prove), and u’vier would not be necessary?

The Gemora answers: If the Torah would only write v’shilach, we would only have learned that one is liable for one of those damages; either regel because its damage is usual, or shein because it has physical pleasure when damaging (but we would not have learned that there is liability for both types).

The Gemora asks: But they are both equal, so let us derive both types of damages from one verse, for which one of them would be excluded?

The Gemora answers: If shein and regel would be derived from one verse, we might have said that one is liable only if the owner sent the animal out; however, one would not be liable if the animal went out by itself and damaged. The Torah therefore writes u’vier as well.

The Rashba asks on the Gemora’s question: Why would we learn out both damages from one verse based on the fact that we do not know which one of them to exclude? On the contrary! Since we are trying to extract money from the damager, why don’t we apply the principle that the one who is attempting to extract money is the one who is obligated to bring the proof?

A possible answer on this question is that damages are treated as prohibitions, and the rule is with respect to prohibitions that when in doubt, we rule stringently. Accordingly, we can understand why both damages will be included in one verse since we do not know which one to exclude. Why didn’t the Rashba answer like this?

The Chasam Sofer adds that this is even more problematic, for the Rashba himself (2b) uses this principle to answer a different question. The Gemora had stated: One might think that when the Torah differentiates between a tam (an ox that did not yet gore three times; the owner only pays for half the damage) and a mu’ad (an ox that gored already at least three times; the owner pays the full amount of the damage), it is only when the horn is disconnected from the animal (in a case where the animal took its uprooted horn in its mouth and gored; as the case of Tzidkiyah was of an unattached set of horns). However, when an animal gores with its horns attached to its head, it should always pay full damages. This is why the braisa quotes the additional verse from the Torah.

The Rashba there asked: On the contrary! Let us say that when an animal gores with its horns attached to its head, it should always pay half damages!?

He answered that damages are treated as prohibitions, and the rule is with respect to prohibitions that when in doubt, we rule stringently. Accordingly, when faced with the option of always paying full damages or paying half, the Gemora chooses the option of paying in full.

It would therefore seem that the Rashba is contradicting himself! How do we treat damages? Do we automatically rule stringently because it is like a prohibition, or do we rule leniently, for we are attempting to extract money away from the one who possesses the money, and for that, proof is needed?

The Har Tzvi suggests the following answer: The Levush (C”M 378) writes that not only does the Torah obligate the damager to compensate the person who was damaged, but there also is a prohibition to damage someone else’s property, in the same manner that it is forbidden to steal. If someone does not guard his possessions against inflicting damage on someone else’s property, he has violated a Biblical prohibition.

Accordingly, the Rashba can be explained as follows: The Gemora above was discussing a case where the damager is certainly obligated to pay. The animal inflicted damage with a disconnected horn in its mouth. The Gemora’s only question was with respect to the amount of the compensation. Should he always (whether it’s a tam or a mu’ad) pay full damages, or should he only pay half. In such a case, we would rule stringently, for the owner has indeed transgressed the prohibition of allowing his animal to cause damage. He now has to “fix” his sin by compensating the owner for his loss. This would be similar to a case where one said to his fellow, “I know that I owed you money, but I do not know if I paid.” He would be obligated to pay. However, in our case, where the Gemora is not certain if one should be liable at all for shein or regel; we must rule leniently. For it is quite possible that the Torah did not mandate that there should be any obligation to guard one’s property against causing such a damage. This is why the Rashba asks that if we are uncertain if there is any liability at all, we should rule leniently, and apply the principle of the one who is attempting to extract money is the one who is obligated to bring the proof. Accordingly, there is no contradiction at all.

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An Av and its Toladah

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The Gemora (Bava Kamma 2a) notes: We see regarding Shabbos that there are thirty-nine main categories of melachos (that are forbidden to perform according to Torah law) on Shabbos. This implies that there are sub-categories as well. Regarding Shabbos, we say that the sub-categories are like the main categories. Whether one transgresses a main category or sub-category unwittingly, he must bring a korban chatas. Whether one transgresses a main category or sub-category willfully, he is liable to be stoned. What difference, then, does it make that one is called a main category and one is called a sub-category? The difference is that if one performs two main category prohibitions or two sub-category prohibitions, he is liable twice. However, if he performs a main category prohibition and its sub-category prohibition at the same time, he is only liable for transgressing Shabbos once (and would only bring one korban chatas).

Rashi explains that when one performs an av (main category) together with its toladah (sub-category), he is liable for the av, and not for the toladah. For example, if one planted a tree (av) and watered a plant (a toladah of zore’a), he is liable for the av, and not for the toladah.

The commentators ask: What practical difference does it make if he is liable for the av or the toladah? The bottom line is that he is required to bring one korban chatas!?

Reb Tzvi Pesach Frank suggests the following: The Gemora in Shabbos (71b) rules that if one eats two olive-sized pieces of cheilev (forbidden fats) in one state of unawareness, and he is apprised of the first and he brings a korban. If subsequently, he becomes aware of the second, he is now required to bring another chatas for that one (for the bringing of one korban cannot exempt one from bringing a korban for a violation that he did not know about at the time). Accordingly, if one would perform an av and its toladah together, and he would be apprised of the av, but not the toladah, he would bring a korban for the av. If afterwards he is made aware of the toladah, he would be liable to bring a korban for it, for according to Rashi, one is not liable for a toladah when it is done together with its av.

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Stealing from an Idolater

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The Gemora (Kiddushin 63) proves that Rabbi Meir holds a man may sell something that is not yet in existence from the following braisa: If a man said to a woman, “You shall be betrothed to me after I convert,” or “After you shall convert,” or “After I shall have been set free from slavery,” or “After you have been set free,” or “After your husband dies,” or “After your sister (my wife) dies,” or “After your yavam has submitted to chalitzah from you,” she, Rabbi Meir ruled, is legally betrothed! [The kiddushin is effective when the respective conditions are fulfilled, though at the time of the betrothal they were still unfulfilled; this indicates that an act that involves something that is not yet in existence is nevertheless, valid.]

The Acharonim ask: The Gemora in Bava Kamma (70b) explains that the acquisition using money (kinyan kesef) functions in the following way: When the seller receives the money, he becomes obligated to give the item being exchanged with the money. Now according to those that hold that it is permitted to steal from a gentile, how can the idolater betroth this woman with money after he converts? The woman is not obligated to return the money, and if she will lose the money, she would not be required to compensate him! If so, where is the kinyan?

Reb Shimon Shkop answers based upon the opinion of the Yereim, who says that even according to those that hold that it is permitted to steal from a gentile, one cannot fulfill his mitzvah with an esrog that he stole from a gentile. This is because it is not regarded as “his,” for the Torah did not render their money ownerless that anyone has the right to possess their money. “Stealing from an idolater is permitted” means that there is no prohibition against keeping that which was stolen from them. However, since it does not belong to the Jew, he still has an obligation to return it to its rightful owner, and he would be liable to compensate the gentile if he would lose it. Accordingly, the kinyan of money would still apply to an idolater.

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Opportunity to Repent - Kiddushin 49

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If he says, “Become betrothed to me on condition that I am a righteous person,” she is mekudeshes even if he is completely wicked, because perhaps he intends to repent.

The Beis Yosef writes in the name of Rabbeinu Yeruchem that if he is a rasha due to sins committed between his fellow man, such as a thief, he cannot be considered righteous until he returns the stolen object. And so it would be by all such sins; if he wounded his fellow man, he cannot be regarded as a Tzadik until he compensates the injured party.

However, some say that as long as he has resolved to make amends, he is considered a righteous person.

The sefer Shai Lemoreh asks: The Gemora in Bava Kamma states that if a person stole money and he decided that he will return it, but before he had the opportunity to return it, he died, he is not regarded as a wicked person. Yet we find that Yom Kippur does not atone for sins between a man and his fellow until one asks forgiveness from the one that he offended. It emerges that even though he already repented, Yom Kippur will not atone for those sins!?

He answers that by Yom Kippur, it is different. Since the injured party is still alive, he still has the opportunity to ask him for forgiveness. So long as he does not take advantage of that opportunity, he will not be forgiven. However, one who steals and later intended to return that which he stole, but he died beforehand, he is not regarded as a rasha, for now, he does have the availability to make amends.

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