Sunday, February 22, 2009

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.