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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Permitted Rulings

The Gemora (Daf Yomi: Gittin 41b) had stated, applying the classic principle that it is preferable to render a permissible ruling. Rashi in Beitzah (2b) explains that this means that something that is permitted indicates that the Tanna is relying on his knowledge of the subject matter, and is not afraid to rule leniently. One can be strict even if he is in doubt and it does not necessarily indicate the conclusiveness of the ruling.

Rashbam in Pesachim (102a) writes that if there is no compelling logic to rule stringently, then ruling leniently is not regarded as a more preferred option. Rather, it is the only option. The Rema in his responsa (§ 54) rules that one is not allowed to be stringent regarding an issue where there is no uncertainty.

Pischei Teshuvah (Yoreh Deah 116:10) cites a dispute amongst the Acharonim if one is permitted to be stringent for himself regarding a matter that has been permitted by the Torah, such as a prohibited matter that was nullified.

Bnei Yissachar writes that it is a mitzvah not to be stringent in such a situation.

The Tzlach writes that it is preferable to record the permitted ruling regarding a situation that may be subject to a Biblical prohibition, because if there would be uncertainty, we would be compelled to rule stringently. The Tanna would not be introducing a novel ruling if the ruling was that the matter is prohibited. Regarding a matter that may be subject to a Rabbinic prohibition, however, the reverse would be true. It is preferable to record the stringent ruling because if there would be uncertainty, we would rule leniently.

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Two Leniencies and Two Stringencies

The Gemora (Kesuvos 82a) had stated that we do not find a Tanna ruling stringently on two matters in respect to a kesuvah. Rashi explains that since a kesuvah is a Rabbinic enactment in the first place, we cannot rule with extreme stringencies. Therefore, we cannot rule that moveable objects are pledged for the kesuvah (in accordance with Rabbi Meir) and that the kesuvah may be collected from the debtor of the deceased husband (in accordance with Rabbi Nosson).

The Rif writes that this particular halachic ruling is not applicable nowadays. In the times of the Gemora, the society was an agricultural one and therefore, only real estate was pledged for the kesuvah. However, now that we maintain that all of the husband’s possessions are pledged for her kesuvah, this is not regarded as a stringency and therefore we can rule that the kesuvah may be collected from the debtor of the deceased husband.

Rabbi Braun in Sheorim Mitzuyanim B’halacha points out that the inverse is true as well. In a situation where we rule leniently, we do not rule according to two leniencies. Shulchan Aruch (Y”D, 199:7) writes that although there are times that we allow a woman to immerse herself in a ritual bath during the daytime, we will inform her then that she must clean herself immediately prior to immersion, and we do not rely on the leniency which normally allows a woman to prepare herself a significant time before immersion.

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Daf Yomi - Chagigah 4 - HOW TO RULE IN CASES OF UNCERTAINTY

The Gemora continues to analyze the braisa. It is understandable why a verse is needed to exclude an androgynous from the mitzva of re’iyah. One might have thought that he should be obligated since he has a masculine side to him; the verse teaches us that he is considered a creature unto himself and is not obligated in this mitzva. The Gemora asks: Why is a verse needed to exclude a tumtum; it is undetermined if he is a male or a female, and a verse should not be necessary to exclude a case of doubt?

Rashi learns: Why would we think that a case of doubt would be obligated in the mitzva.

Turei Even asks: There is a principle that in matters of Biblical law, we rule stringently (safek d’oraysa l’chumra); wouldn’t this explain why we would think that a tumtum should be obligated in the mitzva of re’iyah?

Sfas Emes states: It would be evident that Rashi maintains that this principle is only true Rabbinically. The Torah would rule leniently in a case of doubt; The Rabbis decreed that we must rule stringently in these matters. (This is the opinion of the Rambam and other Rishonim.) This will explain the Gemora’s question. We should not need a verse to rule leniently on a tumtum if the Torah always rules leniently regarding cases of uncertainty.

There are those that are not satisfied with this explanation in Rashi, for Rashi in Kiddushin (73a) seems to hold that in a case of doubt, we rule stringently even from a Biblical point of view.

The Peri Megadim (O”C 17:2) differentiates between cases where one would be transgressing a commandment in a manner where he is committing an action against the Torah and one where he is sitting passively without performing an action against the Torah.

Using this principle, we can reconcile the contradiction in Rashi. (I found this in explanation in Kuntrus Kol Hamesifta.) In our instance, the Torah would dictate that the tumtum is not required to embark on the festival pilgrimage since we are uncertain of his status and the Torah rules leniently in cases of uncertainty and states, “One is not mandated to perform an action,” – only Rabinically, would he be obligated to ascend to the Beis Hamikdosh. However, Rashi in Kiddushin is referring to a case where the Torah rules stringently because there the Torah is instructing him not to perform an action (he is prohibited from marrying a safek mamzeres).

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Daf Yomi - Rosh Hashana 23 - Ruling Stringently by a Rabbinic Prohibition

Abaye, in explaining the Gemora’s reasoning as to why they didn’t institute to light the torches only on the night of the thirty-first is because this would compel the people of Bavel to cease from work for two days in the beginning of Tishrei. Those residing in Bavel would always refrain from work on the thirtieth of Elul since perhaps that day is Rosh Hashanah and if the torches will not be lit until after the thirty-first day, this would force them to abstain from work another day since perhaps Elul had thirty days and the thirty-first day is Rosh Hashanah. This is Rashi’s explanation.

Tosfos disagrees and understands the Gemora to be referring to every Rosh Chodesh where there is also a prohibition against working.
Turei Even asks that since the prohibition against performing work on Rosh Chodesh is only Rabbinic, shouldn’t we act leniently and allow those that are in doubt regarding the actual day of Rosh Chodesh to work?

He answers that if we would apply the principle of whenever there is a doubt on a Rabbinic matter, we rule leniently, we would be compelled to act in this manner on both days of Rosh Chodesh since there is a doubt on each day. On each day, we would say that the other day is indeed Rosh Chodesh. It will emerge that the prohibition against working will be uprooted completely. In such a circumstance, we do not apply the principle of ruling leniently.

This logic can be found in the Ran in Pesachim. There is a discussion regarding the four cups of wine that we drink on Pesach night. The Gemora is uncertain if there exists an obligation of reclining by the first two cups or the last two. The ruling is that since there is a doubt, we require one to recline by all four cups.

The Ran asks that since the mitzva of reclining by the drinking of the four cups is only Rabbinic, shouldn’t we act leniently? He answers that if we would indeed act leniently, we would be forced to rule that there is no obligation to lean by the first two cups or the last two cups which would result in the mitzva being uprooted completely. The principle of acting leniently does not apply in such situations.

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Daf Yomi - Rosh Hashana 14 - COMPOUNDED DOUBTS

The Gemora cites an incident with Rabbi Akiva that he picked esrogim from a tree on the first of Shevat. He separated maaser sheini as if it was the second year of the Shemitah cycle and he also separated maaser oni as if it was the third year of the Shemitah cycle.

Rabbi Akiva was being strict regarding the halachos of separating maaser from the fruits of the tree. The commentators ask that separating maaser from fruits is only Rabbinic and the principle is that when there is a doubt on a Rabbinic law, one has a right to be lenient. Why did Rabbi Akiva choose to be strict?

The Shaar Hamelech in Hilchos Mikvaos cites Tosfos in Bava Kamma and based on Tosfos explains our Gemora. When there are two Rabbinic doubts that contradict each other, one cannot rule leniently on just one of them since who says that this is the correct one. We cannot rule leniently on both of them since they contradict one another. We are therefore compelled to rule stringently on both of them. It is because of this reasoning that Rabbi Akiva separated maaser for both years.

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Daf Yomi - Beitza 24 - A Doubt on the Preparation

The Gemara explains the Mishna as follows: If there is an object that there is a doubt whether it was sufficiently prepared from before Yom Tov, the object will be prohibited. Rabban Gamliel, however, disagrees and permits them.

The reason that an item that is not prepared prior to Yom Tov is prohibited is because of muktzeh. This is difficult, however, because muktzeh is only rabbinically prohibited, so a case of doubt should also be permitted, as there is a principle that safek derabannan lekula, an uncertainty regarding a rabbinical prohibition is judged leniently?

One answer that is suggested is that the prohibition of muktzeh can be derived from a verse in the Torah that states veheichinu, and they shall prepare. Thus, muktzeh can be viewed as a biblical prohibition and regarding an uncertainty we will rule stringently.

Tosfos Yeshanim on Daf 3b writes that even if muktzeh is not biblically prohibited, the Chachamim treated muktzeh as if it would be biblically prohibited and therefore we rule strictly even in a case of uncertainty.

The Meiri answers that muktzeh is a dovor sheyeish lo matirin', a matter that will be permitted after Yom Tov, so we will rule stringently even in a case of uncertainty.

The Shaar Hatziyon (497:10) writes, based on the Meiri, that if the fish were most likely to spoil if we would wait until after Yom Tov, we can rule leniently and allow one to eat the fish, although this is a case of safek muktzeh, a possibility of the fish being muktzeh.. Shaar HaTziyun does not conclude that this is the halacha, because there are other factors that necessitate a stringent ruling, such as the fact that muktzeh is akin to a biblical prohibition, and for this reason, even if the fish were to spoil, one cannot eat them, unless the fish spoiling will be a complete loss.

Please look here for further discussion regarding muktza.

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Daf Yomi - Beitza 4 - Fundamental Explanation in the Decrees of the Chachamim

The Gemora drew a comparison between the halacha of an object that will eventually become permitted to a case where there is a uncertainty regarding the status of the egg. When an egg was laid on Yom Tov and became mixed with permissible eggs, we would not nullify the egg in question as the egg will be permitted after Yom Tov. Similarly, in our case where there is a doubt if the egg is rabbinically forbidden, we will not rule leniently as after Yom Tov the egg will nonetheless be permitted.

The Ran in Nedarim (52) offers what seems to be a different reason why an item that will eventually be permitted cannot be nullified. Normally if a forbidden food becomes intermingled with food that is permitted, the entire mixture will be permitted to eat, as long as the permitted food will comprise a majority of the mixture. There are certain exceptions to this rule. One exception is that if the two foods are similar to the point that they are indistinguishable from each other, the permitted foods cannot nullify the forbidden food. The Ran explains that a prohibited item which will eventually be permitted is not discernable from the permitted items and therefore it cannot be nullified.

Rav Elchonon Wasserman in Kovetiz Shiurim questions the words of the Ran from our Gemora. Here we equated the halacha of a case where there is an uncertainty if the egg is rabbinically forbidden to the case where the item will eventually be permitted and we ruled that the forbidden item is not nullified because it will nonetheless be permitted after Yom Tov. According to the Ran, however, there is no comparison. In the cases where the item will eventually be permitted, there is no nullification as the two items are indistinguishable from each other and that is why we cannot be lenient. In our case there is an egg which we have an uncertainty regarding to when the egg was laid, thus creating a Rabbinic doubt, so why should we not be lenient?

Rav Elchonon asks further on the essence of the Ran’s explanation. Why is an item which will eventually be permitted deemed to be indistinguishable from the other permitted items, if at present the item is forbidden. It is evident that they are distinguished from each other because the item is biblically permitted due to the nullification of the majority of items. What, then, compelled the Chachamim to rule stringently and state that an item that will eventually be permitted cannot be nullified?

The most obvious answer to the latter question is that logic dictates that one should not eat something until it is completely permitted, rather than nullifying it in its present state. The Ran, however, maintains that this reason alone would be insufficient for such a stringency. Rav Elchonon writes that there are two fundamental ideas that are required for every rabbinic injunction. First, there must be a legitimate reason for the decree and furthermore, there must be a biblical source that justifies the decree, as the Chachamim need to have a source in the Torah that will reinforce their decree.

The Chachamim saw fit to decree that a forbidden item that will eventually be permitted cannot be eaten now. The reason for this is because one can wait until the item will become permitted and then he can eat it. The justification for the Chachamim issuing this decree was based on the biblical law that a forbidden item which is indistinguishable from the permitted items cannot be nullified.

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Daf Yomi - Beitza 3 - Eating and Handling the Egg

The Gemara cites a Baraisa that rules that when there is a doubt, one is not permitted to eat the egg. The Gemara assumes that the doubt is where the egg was laid on Yom Tov or prior to Yom Tov. According to Rabbah, who maintains that an egg that is laid on Yom Tov is prohibited because of the principle of hachanah, i.e. preparation, then we can understand why the Baraisa rules that in a case of doubt the egg is prohibited. This is because the principle of hachanah is biblical in nature and we always rule stringently regarding biblical uncertainties.

The Rashba in Avodas HaKodesh rules that one is forbidden to eat an egg that was laid on Yom Tov, thus rendering the egg muktzeh, and one is prohibited from handling the egg on Yom Tov. The Eimek Bracha asks on the Rashba from our Gemara because it would appear from the Baraisa that in the case when there is a doubt if the egg was laid on Yom Tov and the Baraisa rules that it is forbidden, one is also prohibited from handling the egg. The Gemara can ask on Rabbah that Rabbah rules that one is biblically prohibited from eating an egg which was laid on Yom Tov and therefore in a case of doubt, it will also be forbidden. Regarding handling the egg, however, which in a case of certainty is only rabbinically forbidden, it should not be forbidden to handle the egg. The Emek Bracha wants to prove from this Gemara that the reason of hachanah will biblically prohibit one from eating the egg and from handling it and that is why in a case of doubt, it will be forbidden to eat and to handle the egg.

Bais HaLevi, cited in sefer Matikei Shemuah, writes that when the Baraisa rules that the egg is forbidden in a case of doubt, that only refers to the prohibition of eating the egg, as it is biblically prohibited to eat an egg which was not prepared prior to Yom Tov. It is permitted to handle the egg, however, as handling the egg is only a rabbinical decree and we are not stringent in a case of doubt.

Reb Dovid Newman in his sefer Avodas Yom Tov offers two answers to the question on the Rashba.

The Shach (Yoreh Deah 110) rules that when there is a case of doubt and there are two halachic ramifications, we must either rule stringently or leniently regarding both applications. We cannot rule stringently regarding one halacha and leniently regarding another. For this reason, since the ruling in our case is that the egg is forbidden to eat, it must follow that the egg cannot be handled even though it is only a rabbinical prohibition.

Another answer is that once it is decided that the egg cannot be eaten because it might not have been prepared prior to Yom Tov, the egg automatically becomes muktzeh. We are not ruling that it cannot be handled because of the uncertainty. Rather, once it has been decided that the egg cannot be eaten, the egg is rendered muktzeh for certain and subsequently the egg cannot be handled.

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Daf Yomi - Beitza 2 - Courage to be Lenient

Rav Nachman explains that the dispute in the Mishnah refers to a hen which is designated to produce eggs and is not designated for consumption. Bais Shammai is in accordance with Rabbi Shimon who maintains that there is normally no prohibition of muktzeh and therefore one would even be permitted to eat an item that was not in existence before Yom Tov. Bais Hillel, however, is in accordance with the opinion of Rabbi Yehudah and therefore one cannot eat the egg on Yom Tov. The Gemara asks that if the dispute between Bais Shammai and Bais Hillel is regarding a prohibition of muktzeh, then why they not argue regarding the hen itself which will be muktzeh according to Beis Hillel. The Gemara answers that the Mishnah wanted to notify us regarding the extent of Bais Shammai’s leniency that even though the egg was not in existence and should thus be considered nolad, something which just came into existence on Yom Tov and should be forbidden, and one is still permitted to eat it. The Gemara then asks that if Bais Shammai and Bais Hillel would dispute the hen itself, we could learn a novel ruling prohibiting muktzeh as Bais Hillel would prohibit the hen from being eaten. The Gemara answers with the classic principle that it is preferable to render a permissible ruling. Rashi explains that this means that something that is permitted indicates that the Tanna is relying on his knowledge of the subject matter and is not afraid to rule leniently. One can be strict even if he is in doubt and it does not necessarily indicate the conclusiveness of the ruling.

Rashbam in Pesachim (102a) writes that if there is no compelling logic to rule stringently, then ruling leniently is not regarded as a more preferred option. Rather, it is the only option. The Rema in his responsa (54) rules that one is not allowed to be stringent regarding an issue where there is no uncertainty. Pischei Teshuvah (Yoreh Deah 116:10) cites a dispute amongst the Acharonim if one is permitted to be stringent for himself regarding a matter that has been permitted by the Torah, such as prohibited matter that was nullified. Bnei Yissachar writes that it is a mitzvah not to be stringent in such a situation.

The Tzlach writes that it is preferable to record the permitted ruling regarding a situation that may be subject to a biblical prohibition, because if there would be uncertainty, we would be compelled to rule stringently. The Tanna would not be introducing a novel ruling if the ruling was that the matter is prohibited. Regarding a matter that may be subject to a rabbinic prohibition, however, the reverse would be true. It is preferable to record the stringent ruling because if there would be uncertainty, we would rule leniently.
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