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July 26, 2016 / 20 Tammuz, 5776

Posts Tagged ‘Daf’

Daf Yomi

Thursday, July 14th, 2016

Staying Alive Underwater
‘She Has Already Ascended’
(Bava Kamma 50a)

 

Throughout the generations, amongst the most sensitive halachic questions have been those relating to agunos, women who are “chained,” unable to marry because their husbands have disappeared (while traveling, while fighting in war, etc.). What if a man was last seen falling into a body of water? How long must he be submerged for us to assume he drowned (and permit his wife to remarry)?

A Miracle

Our daf mentions a certain man named Nechunya, who was known as “the Ditch Digger” because he used to dig large, deep pits to collect rainwater so that pilgrims traveling to Jerusalem for the Festivals would have plenty of water to quench their thirst. Nechunya’s daughter once fell into one of these pits, and a crowd of people ran to R. Chanina ben Dosa to ask him to pray for her. The Gemara relates that during the “first hour” he said she was okay, during the “second hour” he said the same thing, but during the the “third hour,” he said, “She has already ascended [to heaven].” Too much time had passed for her to have remained alive in the water. In actual fact, she did survive, but that was obviously due to a miracle. Indeed, the girl later reported that an elderly man (Avraham Avinu himself, see Rashi, s.v. “vezakein”) came to her rescue.

Thus, this story seems to be clear evidence that a person can only be taken for dead if he is submerged underwater for three hours. The Rivash (Responsa 377) is of this opinion, and many Acharonim (Toras Emes 1, Eliyahu Rabbah 12) maintain that he bases his ruling on this story.

1-2-3

The Maharit (Responsa, Even HaEzer 26), though, points out that it is clearly impossible for a human being to remain alive for more than two hours undr water without oxygen. How, then, does one explain the story in the Gemara? The Maharit argues that “hour” – or “sha’ah” – in this story is not to be taken literaly. Rather, it means “time.” Thus, “first hour” really means “the first time,” “second hour” means “the second time,” etc.

Alternatively, the Maharit suggests that Nechunya’s daughter may not have actually been underwater; rather, she was clinging with all her might to stakes projecting from the sides of the pit.

How Long Is An Hour?

The Maharit quotes Tosafos (Sotah 11a, s.v. Miriam), who offers a proof that “sha’ah” does not always mean 1/24 of the day. The Mishnah (Sotah 9b) relates that Miriam anxiously awaited on the banks of the Nile for a sha’ah to see what would happen to her infant brother Moshe. The Tosefta (Sotah 4:1) states that the measure of Divine benefit is 500 times greater than the measure of Divine punishment. That means that a person’s reward for doing a good deed is 500 times greater than what is meted out for a single transgression. Thus, if Miriam waited one hour for Moshe, the Israelites should have waited 500 hours for her in the dessert. Yet, they only waited for her for a week, which amounts to 168 hours (Bamidbar 12:15). Clearly, then, “sha’ah” does not always means one hour.

Despite this proof and the Maharit’s opinion, Rabbi Akiva Eiger (Responsa, second edition, 47) argues that we should not disregard the Rivash’s opinion and we should only assume someone underwater is dead if he remains there for three hours.

Rabbi Yaakov Klass

Daf Yomi

Thursday, July 7th, 2016

Honoring A Father’s Wishes
He Shall Give It To Whom He Has Trespassed’
(Bava Kamma 40b)

R. Nathan rules that a creditor can collect payment for a loan from the debtor of his debtor based on the words (Bamidbar 5:7) “venassan la’asher asham lo – and he shall give it to him against whom he has trespassed.” Thus, if Shimon owes Reuven $100 and Levi owes Shimon $100, Reuven has can go directly to Levi for payment, bypassing Shimon (if Shimon, for example, doesn’t currently have the funds to repay the loan). This rule is known commonly as “Rabbi Nathan’s lien” (Shi’buda deRabbi Nathan).

This rule is based in part on Tehillim 37:21, as well, which states, “Loveh rasha ve’lo yeshalem – The wicked borrows but does not pay back.” Usually, a righteous individual does not want to be classified as a wicked person and wishes to repay whatever he owes. At times, however, his money may be tied up because of loans he has advanced to others, and he is unable to repay his own debt. He is happy, therefore, if his creditor goes to his debtors directly to collect.

A Note As An Asset

The Ran (Kethubbos 19a, cited by Aruch HaShulchan, Choshen Mishpat 86:2) questions the necessity of R. Nathan’s exposition of the law from “venassan la’asher asham lo.” Since Shimon owes money to Reuven, all of Shimon’s assets are applied to the repayment of his debts, including whatever is owed to Reuven. The loan note is obviously considered one of Shimon’s assets. Thus, if Reuven secures that note, he should be entitled to present it to Levi and demand payment.

A Mere Paper

The Ran (as well as the Rashba in his chiddushim at the end of Tractate Kiddushin) maintains that one cannot use a loan document as payment for a debt because the note has no intrinsic value. It is not considered either money or property; it has no value of its own. That is why R. Nathan used Bamidbar 5:7 to rule that Levi’s debt to Shimon is owed directly to Reuven.

Cash Or The Like

The Ketzos HaChoshen (86:1) points out that according to biblical law, only that which is in the debtor’s possession at the time a loan is made is subject to the lender’s lien. Thus, if Shimon borrowed money from Reuven after he lent money to Levi, Levi’s debt would not be subject to Reuven’s lien. Therefore, were it not for R. Nathan’s derivation, Reuven would not be able to collect his debt from Levi directly.

The Ketzos HaChoshen proposes another explanation as well. If Shimon offers to settle the debt by paying Reuven in cash, Reuven would not be entitled to refuse it and demand payment in real property from Levi (which might be more valuable) were it not for R. Nathan’s rule.

Forgive And Forget

The Ritva (Kesubbos 19a ad loc.) remarks that were it not for R. Nathan’s rule, Shimon would be able to waive Levi’s debt to him in spite of the fact that he himself is indebted to Reuven. (This, of course, would cause a loss to Reuven if he himself does not have the means to repay the loan.)

Rabbi Yaakov Klass

Daf Yomi

Thursday, June 30th, 2016

A Matter of Anticipation
‘A Stone Flew From His Hand, And Another Put Out His Head From A Window …’
(Bava Kamma 33a)

 

Our Gemara states the opinion of R. Eliezer b.Yaakov, who notes that a person is exempt if he throws a stone that strikes and kills someone who puts out his head (from a window, directly in the path of the stone). R. Yose b. Hanina clarifies what “exempt” means: The stone thrower is exempt from galus (i.e., having to flee to a city of refuge), but he must pay for nezek (depreciation for injury caused), tza’ar (pain), rippu’i (medical treatment), sheveth (loss of livelihood), and bosheth (humiliation).

Let us compare this law with another one in this tractate (supra 26b). Rabbah states that a person is exempt if he tosses a vessel from the top of a roof and someone (even the thrower) removes mattresses and cushions that are on the ground (to absorb the shock of the fall). Why? Because the original act of throwing was not intended to cause damage. Rashi (s.v. patur) notes that both the thrower and the one who removed the cushions are exempt because of the principle that grama bi’nezikin patur – there is no liability for damage caused by indirect action.

 

Do They Agree Or Disagree?

The Rashba (ad loc. Novellae 33a) maintains that Rabbah would not agree with R. Eliezer b. Yaakov’s ruling regarding a stone thrower since the stone thrower alone is not responsible for the damage. Had no one stuck out his head in the path of the stone, no damage would have occurred.

Tosafos (s.v. “vehotzi ha’lah es rosho”) differs. The one who tossed the vessel, Tosafos argues, had no reason to anticipate that the cushions might be removed. Their removal is considered like damage caused by an unusual, unexpected strong wind – ruach she’einah metzuyah. A person who throws a stone in a populated area, in contrast, does have reason to anticipate that someone might walk into the path of the stone.

Rabbenu Yeshaya (cited by the Shitah Mekubbetzes, ad loc.) finds difficulty with the position of Tosafos because Rabbah stated that “even if the one who threw the vessel had, himself, removed the cushions, he is exempt when the vessel breaks upon reaching the ground.” Obviously, then, the reason the person is exempt is not because he is blameless but because each act is considered independently. Throwing the vessel is one act; removing the mattresses is another. And neither act is “complete.” The first act wouldn’t have resulted in any damage, and the second act caused damage indirectly – grama. Rabbenu Yeshaya does not deem the second act a “ruach she’einah metzuyah” because the damage is to be anticipated if the person who threw down the vessel removed the mattresses.

Rabbi Yaakov Klass

Daf Yomi

Thursday, June 23rd, 2016

Taking The Law Into One’s Own Hands
‘Break His Teeth And Tell Him I Am Taking Mine’
(Bava Kamma 27b)

 

The Sages on our daf disagree as to whether a person who discovers a missing article of his in someone else’s house can simply take it back without asking permission from beis din. The Shulchan Aruch (Choshen Mishpat 4:1) writes that he may.

Several Rishonim maintain that he may not based on a passage in the Gemara (Berachos 5b) which relates that 400 jugs of wine belonging to R. Huna turned into vinegar as punishment (say the Sages) for not having given his tenant farmer the share of grapevines they had agreed upon. Although the tenant farmer had been dishonest (he was appropriating more than his share), R. Huna still was not allowed to withhold his share. This passage seems to imply that one may not regain possession of one’s own property without obtaining authorization from beis din.

 

Was It Stolen Property?

The Mordechai (on our sugya) distinguishes between the two cases. He writes that one may retrieve one’s stolen article without permission of beis din, but one may not collect a debt without first registering a claim in court. When a person takes money or another article in place of an article taken from him, there is always a concern that he will be inexact in evaluating the article he is taking.

The following case is discussed in Sho’el U’Meshiv, Mahadura 3, siman 371: Two men started a potato supply business. Each partner would take potatoes from his storehouse, sell them at local markets, and then split the profits. Eventually it became clear to one of the two wholesalers that his partner was defrauding him by falsifying the profit reports. He wanted to do the same, taking back what belonged to him without informing his partner. Normally this would be forbidden due to the concern that a person trying to recover what is rightfully his might not make a correct evaluation. In this case, however, the Sho’el U’Meshiv ruled that since the partner was taking his due from the monetary profits of the partnership and knew exactly how much money had been embezzled, he was permitted to “steal” this sum back.

Do Not Appear As A Thief

Rav Pe’alim (Choshen Mishpat 3:5) addresses a similar incident and argues that if a partner has the opportunity to recover his losses openly, he should do so, in accord with the admonition (Bava Kamma 27b) of Ben Bag Bag (an early Tanna): “Do not enter your neighbor’s courtyard in stealth to take what belongs to you without his permission, lest you appear to him as a thief. Rather break his teeth [face him] and tell him, ‘It is my own property that I’m taking.”

Rabbenu Yona (cited in Sha’ar HaMishpat 348) rules similarly, forbidding a victim to recover his property in a way that may look like stealing due to mar’is ayin (an action that, though permitted, may appear to an observer as a transgression).

The Rif (Responsum 133) maintains that it is forbidden to retrieve property in a manner that may look like theft, not only because of mar’is ayin, but also because of the biblical prohibition, “You shall not steal” (Vayikra 19:11).

Rabbi Yaakov Klass

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

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