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An Auto Accident
“All Agree That They Are Exempt [Of Any Monetary Payment]”
(Kesubbos 35a)



The Academy of Hezekiah derives from Leviticus (24:21) that the rule of “Kam leih b’deraba mineih (lit.: He shall suffer only the greater – capital sin’s – punishment penalties, which exempt those from monetary obligations incurred at the time of a capital sin) applies even when the death penalty for the capital sin is not carried out. For example, if one desecrates the Sabbath today, when the Beis Din is no longer authorized to mete out capital punishment, he is, nevertheless, exempt from paying for monetary damage caused during the Sabbath desecration even though he will not actually incur the death penalty.


‘If He Seized It’

As mentioned above (30b), Rava (Bava Metzia 91a, as explained by Rashi, ibid s.v. “Rava amar esnan asrah Torah…”) asserts that the rule of “Kam leih bi’derabbah mineih only restricts the Beis Din from meting out two punishments for one transgression. However, the transgressor has a heavenly/moral obligation to compensate his victim. (See Tosafos, Kesubbos 33b s.v. “Lav mishum…)

Moreover, Rashi (Bava Metzia, ibid.) cites his teacher, who adds that if the damaged party seizes payment for his damages, he is permitted to retain it since the money is really owed to him.

The Shita Mekubbetzes (Bava Metzia, ibid.) seems to rule that payment for such damages is an absolute obligation. However, the court does not enforce such payment.


Modern-Day Ramifications

The She’arim Metzuyanim Behalacha notes that this halacha has practical ramifications with regard to a negligent driver who, Heaven forbid, kills someone in a car accident while also causing monetary damage. According to Tanna Debei Chizkiya, the driver is exempt from paying for damages since they occurred during the commission of a capital sin (i.e., murder/manslaughter) – even though the killing was not deliberate and the driver will not incur the death penalty.

According to Rava, however, the negligent driver has a moral obligation to pay for any monetary damages that he caused. Moreover, according to Rashi, if the damaged party seizes payment, the court permits him to retain possession of the money since it is really owed to him.


‘Taking The Law Into One’s Own Hands?’

The Nesivos (siman 28:sk1) asserts that it is only after the fact that the plaintiff is allowed to retain the money that he seized as compensation for his damages. However, a priori it is forbidden for a person to take the law into his own hands and seize monies that were not awarded to him by the court.


Kam Lei… Does Not Apply

The Shita Mekubbetzes (30b) distinguishes between a capital sin that is committed be’shogeg (non-deliberately, but as a result of a measure of negligence) and one that is committed be’oness (due to circumstances beyond one’s control). He limits Tanna Debei Chizkiya’s halacha to shogeg. However, if one damages his fellow while violating a capital sin be’ones, he is obligated to pay for the damages (provided he was somewhat at fault for the damages).


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Rabbi Yaakov Klass is Rav of K’hal Bnei Matisyahu in Flatbush; Torah Editor of The Jewish Press; and Presidium Chairman, Rabbinical Alliance of America/Igud HaRabbonim.