Photo Credit: Jewish Press

A Distressful Situation
No Lashes Are Administered’
(Nazir 23a)



Our Daf discusses the case of a woman who undertakes a Nazirite vow and then drinks wine intentionally or becomes ritually defiled. She is liable for the administration of 40 lashes. However, if her husband had annulled her vow without her knowledge and she drank wine thereafter, she is not liable for the punishment of 40 lashes. R. Yehuda maintains that she is, in fact, rabbinically liable for the punishment of 40 lashes. The Gemara cites a baraita indicating that she requires atonement and forgiveness – she had intended to sin and must now repent. The intention is the determinant.


How Much Is a Mitzvah Worth?

Someone once preempted another person’s mitzvah: A ritual slaughterer (shochet) was about to observe the mitzvah of covering the blood after shechita, and another person interceded and covered the blood. The Gemara (Bava Kamma 91b) relates that in that case, Rabban Gamaliel obligated that person to pay the shochet 10 zehuvim (gold coins).

There are two very interesting co-dependent disagreements regarding this obligation.


A Kenas or Payment for Damage?

We find two utterly different definitions among the Rishonim about the obligation of payment by someone who preempts a mitzvah. Some say that the payment is a kenas (fine) imposed by the Sages, whereas others say that the payment is “a regulation intended to endear precepts.” In other words, the Sages instituted a payment for preempting a mitzvah similar to the laws requiring payment for damages, and they thus sought to endear mitzvos (see Bava Kamma 32b, Rif ad loc. and Rosh; Responsa Rivash 506; Shitah Mekubbetzes in the name of Rabbi Yonathan).


Seizing a Mitzvah Unintentionally

Several halachic implications result from this disagreement. If someone preempts a mitzvah unintentionally, and we consider the obligation of payment to stem from the laws of payment for damages, he is required to pay since one who causes damage unintentionally is not exempt from payment. However, if the obligation is a kenas, we cannot impose a fine on someone who, without intent, robs another of a mitzvah (Rivash, ibid.).


Confessing to Snatching a Mitzvah

There is a principle that “someone who confesses is exempt from a kenas.” If someone performed a deed for which a beth din imposes a fine but he confessed his deed in court before the fine was imposed, he is exempt from payment. Therefore, if the payment is considered a fine, someone who snatched a mitzvah and ran to the beth din to confess is exempt from payment. But if his obligation to pay stems from the laws of damages, his confession cannot exempt him (see Shitah Mekubbetzes, Bava Kamma ibid., in the name of Mahari Lunel; see also Ketzos HaChoshen 388:11). The Rishonim disagreed regarding a fine imposed as a rabbinical decree on a person exempted by confession.


Preventing the Performance of a Mitzvah

The Kesav Sofer mentions another interesting difference (Responsa Kesav Sofer, Choshen Mishpat 25) concerning a person who prevented another from observing a mitzvah and did not perform the precept in his stead. If Rabban Gamaliel’s obligation of payment is attributed to the laws of damages, then this person has caused a damage by taking away from another the opportunity to perform that mitzvah. If it is considered a kenas, the fine is imposed for having snatched a mitzvah. But if he merely prevented another from fulfilling the mitzvah (without fulfilling it himself), he is a sinner. That cannot be included in the category of fines.


How Much Should Be Paid?

Until now we have discussed the Rishonim’s disagreement about whether the payment is for damages or a kenas. There is another disagreement among the poskim: How much should the payment be? The Gemara (Bava Kamma 91b, see above) relates that Rabban Gamaliel obligated the person who “snatched” the mitzvah to pay 10 zehuvim, but some poskim maintain that this was a specific case that justified such a payment but that each case must be judged separately. On the other hand, some maintain that a payment of 10 zehuvim should apply to every case of preempting a mitzvah. These two opinions are mentioned by Rambam (Hilchos Chovel Umazik 7:13; see Shulchan Aruch, Choshen Mishpat 382:1).

We can understand that these two disagreements are co-dependent. The Maggid Mishneh and the Shach (ibid.) state that according to those who hold that the payment stems from damages, the sum is always 10 zehuvim since Rabban Gamaliel determined that this is the price of a mitzvah. However, if the obligation is a kenas imposed by the Sages, the beth din has to examine whether the person who lost the opportunity to fulfill this mitzvah usually pursues mitzvos, and then they should fine the offender accordingly.

Rabbi Isser Zalman Meltzer, on the other hand, contended the opposite (Even HaEzel ibid.). If the obligation stems from damages, there is no fixed price and we must determine how much the mitzvah is worth to the offended person, that is, how much he would be willing to accept in order to relinquish it. If it is a kenas, however, we can understand that it is a fixed amount since that is the essence of a fine. [As Rambam asserts (op. cit. 3:8), any fixed payment is considered a kenas.]


It Cannot Be Reclaimed

In our era, a beth din does not impose fines. Therefore, because of the doubt as to whether the obligation stems from damages or is a kenas, a beth din does not impose a payment on someone who preempted a mitzvah. However, if the offended person seized property belonging to the offender up to the value equivalent to 10 zehuvim, he is not forced to return it (Shulchan Aruch, ibid.). [Some approximate today’s value of 10 zehuvim to be over $300, depending on the prevailing price of gold and silver.]


Payment For Distress

The Chasam Sofer shares an interesting insight (Chiddushei Chasam Sofer). We know that someone who wanted to observe a mitzvah but had to relinquish it perforce is regarded as though he has observed it. If so, why must the person who snatched a mitzvah compensate the other person? The offended person receives a reward just for having intended to observe the mitzvah, and it turns out that he lost nothing! However, the Chasam Sofer explains that when a person observes a mitzvah and serves Hashem joyfully, he receives a reward for serving Hashem, whereas someone forced to relinquish a mitzvah gets a reward only for his distress. Therefore, though their reward is identical, the person who snatched the mitzvah distressed another person and must compensate him for the distress.


Previous articleLife Chronicles
Next articleNo More Brain Drain
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.