Zomemin

By: Reb Avi Lebowitz

In a situation where two groups of witnesses contradict one another about an event; it is classified as contradictory witnesses, where we have no reason to believe one any more than the other. Under these circumstances the Gemora in Bava Basra has a discussion about what to do - it is an uncertainty, so follow the chazakah. One thing, however, is clear, that we do not believe the latter group any more than the first. However, where the second group doesn't testify about the event, rather about the validity of the first two as being valid witnesses, such as testifying that they are thieves, the second group is completely believed to overthrow the testimony of the first group. This is not considered a novelty, since everything that the first group is saying is true, just that by believing the second group that the first are thieves, we automatically do not accept their testimony.

Rava (in the first version) holds that a zomeim is a novelty and therefore only becomes disqualified from the time of the hazamah, and not retroactively from the time of the testimony. Abaye would presumably agree with Rava that zomemin is a novelty, just that it is not logical for them to be disqualified from the time of the hazamah; therefore we disqualify them retroactively from the time of their testimony.

It seems that the concept of “novelty” by zomemin is that rather than considering it to be a case of contradictory witnesses, where the second group are merely disagreeing about the event, we consider it as if the second group are actually testifying about the character of the first group, invalidating them as witnesses. (See Tosfos who explains that the novelty of zomemin more than contradictory testimony is either that the second group is entirely believed, or that the first group is definitely disqualified, not just out of uncertainty. Assuming like Tosfos’ second approach that the novelty of zomemin is to view the testimony to be on the character of the witnesses, not on the event, in which case it is not a novelty to directly disqualify the first or to validate the second, rather it is a novelty in classification).

Why are zomemin somewhere in between? In essence, the second group is not making a character judgment; they are only contradicting the facts – “these two witnesses could not have possibly witnessed what they claim to have witnessed since they were with us elsewhere.” Had it not been for the novelty of the Torah that we believe the second group, we would view it as if they just contradicting the first group about the events, where we would have a legitimate doubt as to who to believe. We would interpret their intent as simply being that the event was not witnesses by these two witneses because they were with us elsewhere. But the Torah teaches us that we are not to regard the hazamah as just undermining the plausibility of the event, rather they are giving a character testimony similar to claiming that the first group were thieves. Why?

It would seem that the reason is because when testifying about an event, it is sometimes possible to misinterpret the event, or not have a clear picture as to what actually happened, so we give each group the benefit of the doubt. But, by zomemin, the second group is claiming that it was clearly premeditated lying that is taking place, not an innocent mistake. People who would fabricate a story when they were in an entirely different location have a fatal character flaw just as thieves do, and therefore they are not admissible as witnesses in any court.

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Migu

It was stated (Bava Kamma 72): Abaye said: A zomeim witness is disqualified (for any other testimony) retroactively (from the time that he testified). Rava said: He is only disqualified from the time that he is found to be a zomeim.

The Gemora explains: Abaye said that he is disqualified retroactively, for it is at that time that he became an evildoer, for the Torah states: Do not place your hand with an evildoer to be a corrupt witness. Rava said that he is only disqualified from the time that he is found to be a zomeim, for his disqualification is itself a novelty (so why should we stretch it). This is because the two sets of witnesses are two against two, so why should we listen to the second set more than the first? Accordingly, we can only apply the disqualification novelty from the time that they become zomemin.

Tosfos asks: Why is it such a novelty that we believe the second set of witnesses over the first? They should be believed, for they have a migu that they could have disqualified the first set by testifying that the initial witnesses are thieves (“believe us when we say that they were with us, for if we would have wanted to lie, we could have said that they are thieves!”)!?

Tosfos answers that we do not apply the principle of “migu” by two witnesses, for each one of them is not aware as to what the other one is thinking.

Furthermore, it is similar to a “migu against witnesses,” where the migu is not effective, and since in this case, the first set of witnesses are testifying that they did in fact witness the event, they are clashing with the migu of the second set. In such types of cases, a migu is not effective.

The Tzlach answers that this is a migu for half a claim and that is why it is not effective. If they would have only testified that the initial witnesses were thieves, they would become disqualified, but they would not be liable to pay at all. However, if they would testify that the first set was not there at the time that they said the event took place, they would be disqualified and they would be liable to pay. Accordingly, the migu principle would not apply in this case.

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How Kosher?

The poskim discuss different cases of people who transgress, and how we relate to them, in light of Rabban Shimon Ben Gamliel (Rashbag)’s opinion. One situation discussed in recent times is a hotel that wishes to be certified as kosher, but with limitations. The hotel owners agree that all the food prepared in the hotel will be kosher (including only kosher meat, and no cooking of meat and milk together). However, they explicitly do not want to restrict their guests from eating milk right after meat, or even mixing (not cooking) meat and milk together. These actions are Rabbinically forbidden, but not as severe as the other potential transgressions being avoided by the certification. Rav Ovadia Yosef (Yabia Omer Y"D 4:7 and 6:3:3) rules that the rabbinate may - and should - certify the hotel, and says that Rashbag’s statement does not apply to this case. The Rambam rules like Rashbag, but says it’s good to be like the tznuim, making it a positive trait to be concerned with people’s religious welfare. Further, the Rambam may rule like Rashbag only in the case of robbery, which is more severe. Further yet, in the case of the trespassers, they may avoid the land altogether if they know that it may involve other prohibitions. In this case, without the certification, no one will avoid prohibitions, but, on the contrary, violate other ones. Finally, there are many customers who will not eat milk and meat together, and therefore the certification will make the difference for them between forbidden and permitted food. These people (including unwitting tourists) know no better, and therefore are considered anusim (forced), and we are concerned with their welfare.

Rav Moshe Feinstein (Y"D 1:52) also discusses a similar case of an establishment that agrees to only prepare kosher food (with certification), but not restrict the uses of the food by its patrons. Rav Moshe rules that the restaurant should be certified, since a certification does not have to relate to and concern external matters, even in the use of the certified food. Rav Moshe adds that this is especially true, since some of the patrons may be totally ignorant, and have the status of tinok shenishba. This would remove the rule of haliteyhu entirely, even according to Rashbag.

The Tzitz Eliezer (11:55 and 12: page 224) strenuously disputes these rulings, and states that only bad results can come from such a certification. The public at large will take the rabbinate certification much more lightly, and even the certification will be hard to enforce. The Tzitz Eliezer states that Rashbag’s statement definitely applies here, as we want to have no hand in enabling transgressions, and have no interest in ameliorating any of the transgressions involved. In his response to Rav Ovadia Yosef’s letter to him, the Tzitz Eliezer says that it seems that he and Rav Ovadia Yosef approach this halachic area differently.

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Insights on Bava Kamma - 69

Bittul

Tosfos (69a kol hanilkat) discusses how the part of the vineyard that grew after the Tznuim’s declaration did not prohibit the rest of the vine. Tosfos assumes that the regular rules of bittul – nullification of a prohibition in a larger mixture – would not apply, since the fourth year vineyard is a davar sheyesh lo matirin – a prohibition which will become permitted. See the Rama YD 102:4 for a conflicting opinion.

Cuthean produce vs. D’mai

There is a dispute among the Tannaim whether Cutheans are Halachically Jewish, but just less trustworthy, or not Jewish at all. This depends on whether we classify them as Geirei Arayos - converts only due to fear of lions - or Geirei Emes - true converts. (See Tosfos Chulin on how to reconcile the second opinion with the verses in Melachim that state the history of the Cutheans). The Rishonim explain that the author of the braisa in our Gemora holds that the Cutheans are Jews, but just not trustworthy. Their produce is still different than D’mai, the produce of Amei Haaretz, on which there is a doubt as to some of the tithes. D’mai is most likely tithed, but the Sages instituted an assumption of some tithes not taken. Since it’s a special stringency, there are areas where the Sages allowed leniency (e.g., poor people can eat it, it can be separated on twilight Friday night). However, the produce of the Cutheans are considered definitely not tithed, and these leniencies do not apply.

Ye’ush vs. Hefker

The Rishonim question why a person should have to declare the extra fallen sheaves to be hefker for the poor people. Presumably, the owners - who are ready to declare hefker on these sheaves - have given up on them, and such despair (ye’ush) is sufficient for someone to take ownership. Even those opinions earlier in the perek who do not accept ye’ush to transfer ownership, will agree that changing possession together with ye’ush will. Tosfos (69a kol shelaktu) answers that ye’ush will effectuate ownership, but not remove the need for tithes. Tithes are not necessary for hefker, since the Torah states that tithes should be given to the Levi "ki ein lo chelek v’nachala imach" - because he does not have a portion and inheritance with you. This implies that hefker, where the Levi has equal rights with you and everyone else, will not require tithes. Ye’ush, however, will only transfer the grain to the poor, but not give the Levi (or anyone else) rights to the sheaves. In addition, Tosfos states that the ye’ush here is only vis a vis the poor people, and is no better than hefker only to the poor, which is not considered hefker at all.

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Bereirah

In the course (Bava Kamma 69) of discussing Rabbi Yochanan’s statements, the Gemora introduces the concept of bereirah. Bereirah is a wide ranging concept, appearing throughout Shas, in a variety of forms, having ramifications in many halachic areas. Below are a number of facets of bereirah, which appear in the Rishonim and poskim.

Cases
Courtyard neighbors

The Gemora (Nedarim 55b-56b) discusses the status of two people who are partners in a courtyard. They both have use rights, but it may depend on bereirah to determine exactly when each one has ownership at a given time.

Partners

The Gemora (Beitza 37b-38a) discusses cases of partners who split their joined item, insofar as techumim ownership. Bereirah allows us to consider the ultimate allocation reflective of the original true ownership.

Inheritance

This case is discussed by Rabbi Yochanan in our Gemora, and appears in many other Gemoros.

Separating Tithes

This case is discussed by Rabbi Meir and Rabbi Yehudah in our Gemora, and appears in many other Gemoros.

Choosing a Techum

The Gemora (Eruvin 36b-38a) discusses various Eruvei Techumim, where the actual details of the Eruv are left for later clarification, using Bereirah. The Gemora includes a lengthy discussion of Rabbi Yehudah’s position on Bereirah, based on multiple conflicting sources.

Why does (or doesn’t) it work?

Tosfos (Eruvin 37b Ela) states that those who do not accept bereirah feel that later designation is meaningless, and therefore the action is not effective at all. In our case, this means that the separation that will happen after Shabbos is meaningless, and therefore, the declaration at the onset of Shabbos has no wine to take effect on, and it not effective at all. Rashi (Chulin 14b osrin), on the other hand, states that those who do not accept bereirah simply hold that the later designation cannot resolve the initial unclarity. In the case of the wine, when the person declares that he is taking the tithes from wine that will be designated later, the tithes now exist in the wine, but the person cannot designate them later. Therefore, this wine has indeterminate tithes, and none of it can be used.

See Shaarei Yosher (3:22 v’af shera’isi) for a more detailed discussion of how bereirah does work, and what are its limitations. See Shiurei R. Dovid Lifshitz (Hulin, #29) for a further discussion of this dispute.

How much is unclear?

The Ran in Nedarim (55b v’ika) suggests that the case of partners’ use in a courtyard can be considered full ownership, even according to those who generally do not accept bereirah, since the bulk of the "split" is already done, with only the exact time that it will be used left for later clarification.

Will it definitely be clarified?

Tosfos (Gittin 25b Rabbi Yehudah) states that some cases of bereirah are less acceptable, since there may never be any clarification. For example, as opposed to our case of the wine - where some wine will be taken, but it’s not known which - a case of one who consecrates the coin that he will take from his pocket, is a case where it’s possible that no coin will be chosen at all.

Who decides?

The Gemora in Gittin (25a-b) raises the possibility that bereirah may be more acceptable in the case where the area left for later clarification depends on another party. If bereirah is unacceptable because the party doing the action must decide before acting, then if the only clarification is external, the active party has done his part, and left the rest up to something else. Examples of this are:
1. A person who betroths a woman, but stipulates that it will only take effect if the woman’s father agrees.
2. A person who gives his wife a Get, which should be effective one moment before he dies. This is making it dependent on outside party, i.e., Hashem.

Explicit exceptions

There are cases where the Torah states an explicit detail, which overrides the general rules of bereirah.

The Torah explicitly states that a Get must be written "la" - for her (the wife), and from this the Gemora learns (Gittin 2b) that a Get must be written "lishma" - explicitly for the wife’s sake. From this verse, Tosfos (24b l’aizo) suggests that even those who accept bereirah may invalidate a Get which was written for the sake of "the wife that I choose"

The Gemora on our daf mentions the case of brothers who split their father’s estate as a case of bereirah. Tosfos (Gittin 48a Ee) suggests that, even without bereirah, inheriting brothers could be not subject to return on the Yovel year, due to the inherent nature of inheritance and Yovel.

Torah vs. Rabbinic

The Ri in Tosfos (Nedarim 56b) rules that we accept bereirah in all areas of halachah. The Rambam (Eruvin 8:7, Trumos 1:21, Yom Tov 5:20) rules that in Rabbinic areas of halachah, we accept bereirah, while in areas of Torah halachah, we do not accept bereirah.

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Paying for its Worth at the Beginning

Rav said: A thief must pay the principle according to the value of the stolen object at the time that it was stolen. He pays the double payment and the fourfold and fivefold payments according to the value of the object at the time that he was sued in Beis Din.

Tosfos asks: What is the novelty of Rav’s ruling that a thief must pay the principle according to the value of the stolen object at the time that it was stolen? This is an explicit Mishna below that a thief pays according to the object’s value at the time that it was stolen!?

They answer: This, in fact, is not a novelty at all. Rav is teaching us that the double payment and the fourfold and fivefold payments are paid according to the value of the object at the time that he was sued in Beis Din.

The Shitah Mekubetzes writes that the thief pays the double payment and the fourfold and fivefold payments according to the value of the object at the time that he was sued in Beis Din is completely logical, for since the thief is not immediately liable in these payments, for if he wishes, he can admit and be exempt from paying. He therefore pays according to its value at the time that he was sued in Beis Din.

The Rosh seems to be uncertain if this, in fact, is a logical argument, or if this is something which may be derived only based upon a Scriptural verse.

The Machaneh Efraim discusses the following case: If one damages an object belonging to another; at the time of the damage, it was worth five, but at the time of the payment it was only worth four – how much is the damager required to pay? Perhaps the halachah that one pays according to the value that the object was worth at the time that it was stolen applies only to a thief, for that is where the Torah teaches us the halachah; however, by a damager, perhaps he is only required to return a similar object to the one which he damaged, even if now it is worth less?

He concludes that this would be dependent upon the Rishonim in our sugya. If the halachah that a thief pays according to what the object is worth at the time it was stolen is purely logical, then it stands to reason that this should apply to a damager as well. However, if it is something that is derived from a Scriptural verse, perhaps it only applies by a thief, and not by a damager.

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Exemption when One Admits to a Fine

The Gemora (Bava Kamma 64) asks: According to the opinion (63b) who holds that one verse teaches us about the thief himself and the other deals with a custodian who alleges that the object he was watching was stolen and we find that he stole it himself, and he derives the law about the thief himself from the verse, “If the thief will be found,” what does he derive from the verse, “If it will be surely found?”

The Gemora answers: He understands the verse is required for the teaching of Rava bar Ahilai, for Rava bar Ahilai says: Why does Rav say that if a person admits to a fine (which a person by Torah law does not have to pay based on his own admission) and then witnesses come and testify to his guilt that he is still exempt from paying? This is as the verse states, “If it will surely be found.” This teaches us that if it was first revealed with witnesses he should then be decided as guilty by the judges. This excludes a case where he admitted his guilt. [He will be exempt from paying the fine even if witnesses come later.]

Does this ruling apply only in the Beis Din in which the person admitted to the fine, or does it apply even where witnesses testify in a second Beis Din against him?

The Ketzos Hachoshen (350:2) writes that when one is exempt from liability after admitting to a fine, it is not as if the obligation is cancelled; rather, the halachah is that Beis Din cannot obligate him to pay after he has incriminated himself. Therefore, the exemption applies only in the Beis Din in which he admits. If, however, he admitted in one Beis Din and afterwards he was sued in a second Beis Din and witnesses testified against him, the second Beis Din may obligate him to pay the fine. And similarly, if witnesses testify against him in one Beis Din but they did not complete the judgment, and then he is taken to a second Beis Din where he admits to the fine, he will be exempt from paying, since witnesses had not testified in the Beis Din where he admitted, and the Beis Din where he admitted cannot make him liable, for he incriminated himself.

The Nesivos Hamishpat disagrees and maintains that once a person admits to a fine in one Beis Din, he no longer can be obligated to pay even if witnesses testify against him in a different Beis Din. He also holds that in a case where witnesses testify against him in one Beis Din but they did not complete the judgment, and then he is taken to a second Beis Din where he admits to the fine, the second Beis Din cannot obligate him to pay, but it is not because the halachah of admitting is dependent upon Beis Din. Rather, it is because that as long as a verdict has not been reached, it is still regarded as a fine, and therefore, if he admits before a second Beis Din, they cannot obligate him to pay, for he has incriminated himself. However, if witnesses will testify against him in the second Beis Din, he will be liable to pay.

The Nesivos evidently holds that once he admits to the fine and is exempt from paying, the debt is completely cancelled and a second Beis Din cannot make him liable to pay any longer.

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Gematriya

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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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

Halachah

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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Evaluations, Deducting the Food and Black Shoes

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Evaluation

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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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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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.


[END]

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Wishing to be Devout

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Rav Yehudah says (Bava Kamma 30b) : If someone wants to be pious he should fulfill the laws discussed in Tractate Nezikin. Rava says: He should fulfill that which is written in Pirkei Avos (Ethics of our Fathers). Some say: He should fulfill the laws of Tractate Brochos.

The Orach Yesharim explains: The Mishna in Avos (1:2) states: Shimon HaTzadik was from the remnant of the Men of the Great Assembly and he used to say: On three things the world stands on Torah, Service (Avodah), and Acts of Kindliness (Gemilas Chassadim).

Two of these are matters that are between man and Hashem. They are: Torah and Tefillah. Acts of kindness is a matter that is between one man and his fellow. Rav Yehudah is teaching us that in order to be regarded as a devout person, it is not sufficient to be pious in matters that are between man and Hashem. One must be scrupulously ethical in matters that are between his fellow man as well. And quite possibly, he is telling us that a person must first be heedful of respecting his fellow man, and only then can he elevate himself further by fulfilling those laws that govern the relationship between man and Hashem.

In his sefer, Boruch She’amar, Harav Boruch Epstien asks: Why is it that by observing these three areas, one is regarded as devout? Pirkei Avos deals with common sense, practical, and intelligent behavior. Observing the laws of Brochos is also not an issue of piety, since the Gemora (Brochos 35a) states: One who eats without a brocha is robbing from the Almighty." And finally, civil laws that relate to Nezikin, damages, are certainly not issues of piety, but rather of civil obedience!?

He answers, as explained by Reb Hershel Solnica that the Gemora has a deeper and more subtle meaning. In Pirkei Avos, we are taught: A fence to wisdom is silence. This seems to be a matter of common sense. However, a Jew with a soul understands this to mean that not only is silence golden, but words must be measured and be dignified. Too many pious, religious, and fine Jews lose control of their mouth and lavish its use with Lashon Hara, idle talk, and abusive and vulgar language. Brochos is not simply thanking God for what we eat and what we have, but saying that we appreciate these gifts, for were it not for the grace of God, we wouldn’t be able to survive an hour.

Observing civil law – Nezikin - implies more than merely not damaging another’s possessions. It implies that we should consider the money or property of your neighbor as if it were yours. We don’t merely avoid breaking another’s objects. Rather, we care and respect it as we respect our own. These attitudes constitute the core of the soul of a Jew. They do not constitute halachah and they are difficult to concretize, but they are clear to the sensitive eye and heart.

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As if it is in his Possession

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Rabbi Elozar said in the name of Rabbi Yishmael (Bava Kamma 29b) : There are two things which are not legally in one’s possession and the Torah views them as if they are in his possession. One thing is a pit that one digs in a public domain, and even though he does not own the public domain, he is responsible for any liability that occurs regarding the pit. Similarly, one cannot have benefit from chametz after the sixth hour on the fourteenth of Nissan, and the chametz is rendered as ownerless, but one who retains chametz after the sixth hour is considered to have violated the transgression of owning chametz when it is prohibited to own chametz.

Rashi seems to say that the chametz is regarded as his only in the sense that he is held accountable for violating the two commandments of “chametz being seen in his possession” and “leaven being found in his house.” However, he does not actually own the chametz.

Similarly, the Meiri writes with respect to the pit. If there is water in the pit, everyone is allowed to draw water from there. The digger of the pit cannot prevent them from drinking the water by saying that he is the owner, for the Torah considers him the owner only with respect to liability for the damages.

The Chasam Sofer writes that if one would have chametz on Pesach and on Pesach, he would sell it to a gentile, he still would be liable, for the Torah considers it his. And so too, the halachah would be by a pit – if a gentile would acquire the pit, it would still be regarded as the digger’s pit with respect to liability for its damages.

The Noda Beyehudah disagrees and maintains that if without the prohibition of chametz, it would not be in the Jew’s possession, we do not say that the Torah treats it as if it is in his possession.

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