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June 26, 2016 / 20 Sivan, 5776

Posts Tagged ‘Daf’

Daf Yomi

Thursday, June 16th, 2016

Is It Trespass?
‘Reuven Didn’t Benefit And Shimon Didn’t Lose’
(Bava Kamma 20a)

 

Our daf discusses whether someone who occupied vacant premises must pay rent for having done so. It appears (Choshen Mishpat 363:6) that in the unusual situation described in the Gemara, he is exempt from paying because he derived no benefit (since he could have stayed with friends, without paying rent) and the owner cannot claim to have sustained a monetary loss since the place was not up for rent.

 
Eggs Hatched Under A Neighbor’s Hen

Poskim cite numerous variations of this halacha. The Chida (Responsa, no. 7) presents the following scenario: Reuven placed eggs to be hatched under a hen he owned. Then Shimon sneaked into Reuven’s yard and placed another five eggs of his own under the hen. Later, Reuven requested payment for his share of the chicks hatched from the eggs belonging to Shimon since they hatched because of his hen. The Chida writes that this argument is invalid because Reuven incurred no loss when his hen sat on Shimon’s eggs as well as on his own eggs.

Tosafos (20b, s.v. ha ith’hanith) explain that all opinions concur that an owner of a property cannot be forced to allow free use of his unoccupied premises. An objection to such free use is not considered “characteristic of Sodom,” where anything beneficial to another person was prohibited.

Rabbi Shimon Shkop, zt”l (1860-1940), explains in his Shiurei Bava Kamma (19:3) that a person feels his ownership is violated if someone else uses his possessions without his consent. Since the behavior of the premises’ owner is perfectly normal, his refusal to give consent is not “characteristic of Sodom.” We must add that in our day and age in particular, people insist on being asked before their property is used. Demanding retroactive payment, however, is “characteristic of Sodom” since the owner incurred no monetary loss (see Pnei Yehoshua on our sugya).

This principle – that an owner cannot be forced to allow someone else to use his property – varies from case to case and can only be determined on an individual basis as to whether an owner will feel impinged upon if forced to allow someone else the use of his property.

Thoroughfare For A Refrigerator

A few years ago, a dispute arose over the delivery of a new refrigerator. When the deliverymen tried to carry it into the buyer’s apartment, they found the doorway too narrow. The buyer suggested that the deliverymen bring in the refrigerator through the upstairs neighbor’s apartment which had a wider doorway, and then lower it from the neighbor’s kitchen window and bring it in through the downstairs kitchen window. But the neighbor flatly refused. All the downstairs neighbor’s entreaties and the deliverymen’s threats were in vain. The upstairs neighbor remained firmly opposed to the idea.

Scaffolding In An Adjacent Yard

In another case, a contractor preparing to renovate an apartment wanted to set up scaffolding in the yard of an adjacent building for one month. In this case, as well, the contractor faced staunch opposition from the adjacent building’s residents.

These two incidents appeared before two different batei din and, in both cases, the plaintiffs claimed their respective neighbors’ conduct was “characteristic of Sodom.” The defendants, however, argued that according to halacha a person cannot be forced to allow someone else use of his property, and that the “characteristic of Sodom” argument only applies after the fact – if one demands payment after the property was already used.

The batei din decided differently in these two cases. The beis din deciding the scaffolding case upheld the neighbors’ objection. Putting up scaffolding in a yard for an extended period of time definitely makes a person feel his property has been encroached upon (Kovetz Shuras HaDin, volume 2, page 323, by Rabbi Moshe Menachem Farbstein).

The beis din handling the refrigerator case ruled differently. It argued that the neighbor had no reason to refuse, considering that the deliverymen only planned on using his apartment for a short period of time. His refusal, according to the beis din, was “characteristic of Sodom” (Rabbi Yaakov Avraham Cohen of Netanya, Israel in his Emek HaMishpat Vol. 3:1).

Rabbi Yaakov Klass

Daf Yomi

Thursday, June 9th, 2016

Limited Liability
‘It Excludes An Ox That Gored…’
(Baba Kamma 13b)

 

A baraisa on our daf explains the Mishnah’s statement (supra 9b) regarding “nechasim ha’meyuchadim” (property that is owned) that a person only must pay for damages his animal caused if he still owns it. If he declares it hefker or dedicates it to hekdesh, he need not pay anything.

The Tur (Choshen Mishpat 406), however, rules that if the owner subsequently reclaims the animal and take it into his possession, he is obligated to pay for the damages.

 

How Much?

Two verses in the Torah (Exodus 21:35-36) are the source for how much needs to be paid. We deduce from the first verse that if the animal is usually docile (tam) and has never caused damage before, its owner pays only for half the damages (chatzi nezek), as long as it doesn’t exceed the animal’s value (Bava Kamma 14a). The second verse teaches us that if the animal is a mu’ad, i.e., one that has established itself as a habitual damager, the owner must pay for the entire amount of damages, even if it exceeds the animal’s value.

 

Who Pays?

From the Gemara’s discussion it seems that whenever one’s animal causes damage beyond its own value, one can simply declare it ownerless or dedicate it to hekdesh and thus circumvent the obligation to make restitution. This seems problematic, an issue raised by both Pilpula Charifta (to the Rash, 16:40) and Hagahot Chavot Yair (to the Rif, 5a).

The Imrei Bina (to our sugya) suggests that the act of disowning the animal is considered, in itself, damage since it deprives the aggrieved party of his right to collect damages. He explains that only if a person declared his animal ownerless while unaware that the animal caused damage is he not held accountable for the damages. If he was aware, though, that his animal caused damage and only declared it ownerless in order to avoid restitution, he must pay.

Rabbi Yaakov Klass

Daf Yomi

Thursday, June 2nd, 2016

Is It A Penalty?
‘Why Not Deal With False Evidence?’
(Bava Kamma 5a)

 

The Torah (Deuteronomy 19:16-19) states, “If a false witness [the term ‘witness’ is used here as an inclusive noun referring to at least two people] stands up against a man to testify spuriously against him – then both these two men and those who have the dispute shall stand before Hashem, before the priests and the judges of those days. The judges shall make diligent inquiry and, behold, if the testimony is false and the witness spoke up falsely against his fellow, you shall do to him as he conspired to do to his fellow, and you shall destroy the evil from your midst.”

Commenting on the word “spuriously,” Rashi explains, quoting Tractate Makkos (5a), that the witnesses testified to something that was impossible for them to have seen since another pair of witnesses testify that they saw the first pair elsewhere at the time of the incident.

Rashi also writes, regarding “you shall do to him,” that if the false witnesses conspired to have the subjects of their testimony executed, they themselves are executed instead.

 

Compensatory Or Punitive?

Our daf cites a dispute between the Sages and Rabbi Akiva as to whether the payment imposed on conspiring witnesses (edim zomemim) is compensatory (mammon) or punitive (kenas).

The Sages maintain it is compensatory – a payment commensurate to the damage that would have been caused by their testimony. Rabbi Akiva, on the other hand, views the payment as a fine.

This dispute is tied to a list compiled by R. Oshaia (supra 4b) of the numerous types of compensatory damages; he does not include the punishment of edim zomemim on it.

Non-Recoverable Loss

To understand the view of the Sages, we turn to the commentary of the Netziv (Rabbi Naftali Tzvi of Volozhin) to the Rashba (ad loc.), who suggests as follows: The Sages consider the payment of edim zomemim compensatory only if the victim suffered a non-recoverable loss. If the witnesses, however, were discredited prior to causing their intended victim a loss, the Sages agree that the payment is a kenas (i.e., punitive).

Always Compensatory

Rabbi Elchanan Wasserman (Kovetz Shiurim vol. 2, Kesubbos 107-108) argues that the Sages consider the payment compensatory in all cases, even when no loss was caused to the intended victim. He explains that the Torah did not simply penalize edim zomemim for trying to cause a loss; rather, the decree calls for shifting the judgment beis din imposed on the victim – which is compensatory (mammon) in nature – to the edim zomemim.

Rabbi Yaakov Klass

Daf Yomi

Thursday, May 26th, 2016

A Ruling Too Novel?
‘One Who Ate Nevelah On Yom Kippur Is Exempt’
(Kiddushin 77b)

 

Our daf cites R. Shimon who taught in a baraisa that “one who ate nevelah on Yom Kippur is not subject to any penalty for eating on Yom Kippur.” He is only subject to the punishment of lashes for having eaten nevelah.

This ruling of R. Shimon is based on the principle of “Ein issur chal al issur,” a prohibition cannot be imposed when a pre-existing prohibition is already in place. That is, since the prohibition to eat nevelah came into effect even before the onset of Yom Kippur, the additional prohibition of eating on Yom Kippur does not apply.

Either Or

Rashi (ad loc. s.v. “patur mi’kareth”) explains that R. Shimon’s reasoning applies even if the animal was alive when Yom Kippur started. The nevelah prohibition may not have been in place when Yom Kippur started but another prohibition was: eiver min hachai. This, the animal was prohibited for consumption before Yom Kippur started – whether it was alive or dead.

 

It Isn’t Slaughtered

Tosafos (Shevuos 24a, s.v. “ha’ochel nevelah…”) finds difficulty with Rashi’s explanation because of the rule (Chullin 103a) that an animal does not stand to be dismembered while still alive.

Tosafos explains, therefore, that a person has not violated Yom Kippur by eating nevelah – even if the animal was alive when Yom Kippur started – because there is a prohibition against eating a non-slaughtered (“vezavachta…ve’achalta – you should slaughter…and eat” [Deuteronomy 12:21]), and this prohibition was in place before Yom Kippur started.

Two Prohibitions

The Ritzba (Rabbenu Yitzhak b. Avraham, a 12th-century Tosafist, cited in Tosafos ad loc.) dissents and maintains that a person who eats an animal that died on Yom Kippur has indeed violated the laws of Yom Kippur because the Yom Kippur prohibition took effect before the animal died.

As far as the ever min hachai prohibition is concerned, it was only temporary, and when the animal died on Yom Kippur, both the Yom Kippur prohibition and the nevelah prohibition came into effect simultaneously.

Thus R. Shimon’s rule only applies if the animal died before Yom Kippur.

Non-Kosher Food

Rabbi Yechezkel Landau (Noda BiYehuda, First Edition, Responsum 36 s.v. Ve’omnam“) was asked: What should a critically ill person do if he is ordered to eat by his doctor? Based on R. Shimon’s rule, Rabbi Landau answered that it is preferable for the patient to eat nevelah (whose consumption on Yom Kippur normally carries a penalty of lashes) rather than kosher food (whose consumption on Yom Kippur normally carries a penalty of kares).

The Rosh (Yoma, Ch. 8), however, might disagree due to the possibility that a critically ill person will be unable to stomach eating non-kosher food and thus endanger himself even further. It is better for the person to eat less than a “kekoseves hagassa” (the volume of a large date) in increments. In this manner, he will not have eaten the amount of food on Yom Kippur for which one is usually punished. Halacha lema’aseh, most authorities rule in accordance with the view of the Rosh.

Rabbi Yaakov Klass

Daf Yomi

Thursday, May 19th, 2016

In Spite Of The Consequences
‘There Is Birtha di’Satya In Babylon’
(Kiddushin 72a)

 

We are told (Kiddushin 72a) that on his deathbed Rabbi Yehuda HaNasi was granted prophetic vision (ruach hakodesh) and revealed to his disciples a number of secrets. Among them was the fact that the inhabitants of the Babylonian town of Birtha di’Satya had abandoned Judaism, becoming apostates. Rabbi Yehuda HaNasi, who lived in Eretz Yisrael, was able to tell them something that had occurred very recently in Babylon, even providing the detail that R. Ahi had excommunicated them because they had, on Shabbos, caught fish that they trapped in a pond that had overflowed.

Why did Rabbi Yehuda HaNasi reveal an event to his disciples that they would subsequently hear about anyway? Why did he choose to reveal this incident amidst sharing mysteries and secrets of the Torah?

A Harsh Punishment

The Terumas HaDeshen (138), cited by the Rema (Yoreh De’ah 334:1), concludes that Rabbi Yehuda HaNasi intended to teach his disciples an important halachic principle: A person who commits a grave transgression – such as desecrating Shabbos – must be excommunicated even if doing so may lead him to abandon Judaism altogether, just as the residents of Birtha di’Satya were excommunicated by R. Ahi even though this act drove them to apostasy.

The Taz, on the other hand (Yoreh De’ah ibid.), maintains that excommunication should be avoided if it might lead the transgressor to apostasy. He claims that Rabbi Yehuda HaNasi mentioned what was taking place in Birtha di’Satya for a different reason – as if to say: Just as this event will be proven true within a short while (when the news reaches Eretz Yisrael), so too will the rest of the secrets I am divulging.

He might, perhaps, also have been cautioning his disciples to refrain from excommunicating those who stray if it can lead to an extreme reaction.

The accepted halacha is in accordance with the position of Rema, who notes that someone who does not act in accordance with halacha should be dealt with severely, and beis din is not required to take into account the possible repercussions of the punishment it plans to impose.

The Shabbetai Zvi Cult

The Chasam Sofer (Yoreh De’ah 322; Even HaEzer 36) adopts a similar position and touches on a point his predecessors did not mention. He maintains that, based on Rabbi Yehuda HaNasi’s remarks, we can deduce that even if the wife and children of someone who is excommunicated are liable to abandon Judaism following the excommunication of the head of the family, the punishment should still be carried out, just as it was against for the residents of Birtha di’Satya and their wives and children, who did indeed convert after they were excommunicated.

He mentions, as an example, the followers of Shabbetai Zvi, who were excommunicated by the leading rabbanim of their generation even though they knew what would likely happen to the children of the cult members. Ultimately, however, the Chasam Sofer stipulates that this rule only applies when it is clear to beis din that the individual who stands to be excommunicated would corrupt his children anyway.

Rabbi Yaakov Klass

Daf Yomi

Thursday, May 12th, 2016

The Recanted Testimony
‘A Solitary Witness Said To Him’
(Kiddushin 65b)

 

The Torah states (Devarim 19:15), “A single witness shall not stand up…” In general, bet din will not accept testimony given by a single individual. There are exceptions, though:

1) ritual prohibitions, such as kashrus

2) incidental statements of fact – in certain cases we may believe a non-Jew who, in casual conversation, testifies to something.

3) identification of a father that someone is his son

4) the testimony of a woman that she heard from a single witness that her husband died. She may remarry based on this testimony even though two witnesses are ordinarily required in matrimonial matters – see Yevamos 25a.

The Childless Widow

The Ran discusses the following case: A widow, whose husband left her no children, was unsure whether her husband’s brother was alive (if he was, she would need chalitza in order to remarry). A certain person told the woman that her husband’s brother was alive, but when he later appeared before bet din, he retracted his original statement, stating that the brother died long ago. The bet din was unsure whether to believe the first statement or the second.

The Gemara (Sanhedrin 44b) states that once a witness has given his testimony, he cannot alter it. But this individual did not make his original statement in bet din. Perhaps different rules apply to statements made outside beit din – statements which presumably are made with less seriousness.

The Ran rules that a person is permitted to retract a statement made outside a bet din. This ruling is accepted by the Shulchan Aruch (Even HaEzer 17:20) as well.

 

Self Incrimination

The Chazon Ish, however, argues that the individual in this particular case cannot retract his statement since doing so will be a form of self-incrimination, which is forbidden (Sanhedrin 25a). He maintains that we must distinguish between cases where a person’s original testimony prohibited something and his later testimony allowed it, and cases where the original testimony permitted something and the later testimony prohibited it. Since in our case the first statement prevented the widow from remarrying, the witness cannot now change his testimony to permit the widow to remarry.

Rabbi Yaakov Klass

Daf Yomi

Thursday, May 5th, 2016

You Are That Man!
A Poor Man Looking For A Griddlecake…’
(Kiddushin 59a)

 

Our daf relates that a sage, R. Giddal, was in the process of buying a parcel of land when R. Abba came to that same field and purchased it. Since R. Abba was a student of R. Yitzhak Nappacha, R. Giddal’s complaint was brought to him.

R. Yitzhak Nappacha confronted R. Abba and asked him the following: “What would we think of someone who snatched a griddlecake from an indigent man who was looking for it?” R. Abba replied, “We would consider him a wicked man.”

When R. Yitzhak Nappacha asked R. Abba how then he could’ve purchased a piece of land that R. Giddal was in the middle of buying, R. Abba explained that he had had no idea R. Giddal was in the process of buying it and was therefore blameless.

A Sliding Scale

Rashi (s.v. “Ani ha’mehapech becharara”) explains that it is forbidden to snatch away an abandoned item that an indigent fellow is seeking to acquire since doing so deprives a poor man of his sustenance. The Ran (ad loc.) writes that this rule applies only to an indigent individual. One may snatch an ownerless item from a wealthy man as long as it isn’t yet in his possession. The reason is simple: The wealthy person has no need for ownerless, abandoned items. He can purchase whatever he needs.

Wicked?

When it comes, however, to the purchase of a specific parcel of land which cannot be purchased elsewhere, one may not snatch it from another person trying to buy it – even if that other person is wealthy. If a person does so nonetheless, he is considered wicked.

Tosafos (s.v. “Ani ha’mehapech becharara…”) maintains that it is always forbidden to interfere with another person buying something if the item is scarce and cannot easily be obtained elsewhere. Otherwise, one may interfere.

Effort Expended

Tosafos concedes that if effort was expended by an individual, such as a fisherman who cast bait in a section of the sea to attract fish, another fisherman may not fish in that area.

Based on this halacha, Tosafos concludes that it is unethical for a teacher to apply for a position that is already filled by another teacher.

Atzmos Yosef (ad loc.) asks why Tosafos emphasizes that a second teacher may not apply for the job if another teacher already fills it. Even if the first teacher was just negotiating terms for the position, that should be reason enough for the second teacher to seek employment elsewhere.

Maharit (ad loc.) explains that teaching positions with decent wages are difficult to obtain and thus even Tosafos agrees that a second teacher may apply for a position that someone else is already about to fill (but hasn’t yet filled).

A person who already has a teaching position, though, has – like the fisherman mentioned by Tosafos – expended effort (in this case, by teaching children). Thus, it is prohibited to snatch the position from him.

Passing A Sentence

Speaking at an Agudath Israel convention several years ago, Rabbi Avraham Pam, zt”l, rosh yeshiva of Yeshiva Torah Vodaath, cited the famous incident of the prophet Nathan confronting King David and relaying the parable of a rich man who snatched the lone sheep of a poor person. King David said the man deserved to die for what he did. Nathan then pointed to the king and said, “You are that man.” (The Talmud [Shabbat 56a] informs us that from a strict halachic point of view David’s behavior was permitted but not ethical.)

Rabbi Yaakov Klass

Printed from: http://www.jewishpress.com/judaism/halacha-hashkafa/daf-yomi-232/2016/05/05/

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