Monday, February 24, 2014

Bava Kama 83b -- understanding the nature of nezek payment by chovel

Rashi writes on the mishna that the reason for the payment is "שהרי הזיקו והפסידו ממון שאם היה נצרך היה מוכר עצמו בעבד עברי" In other words, Rashi explains that this payment is restitution for a loss (פיצוי).
The Rosh however writes that the computation of nezek is that we look at him as if he were an עבד כנעני. This is something he can never be, so this indicates that according to the Rosh it is an obligation to pay money as a punishment but not as restitution.

-Based on shiur by Rav Lichtenstein Shlita (as i understood it...)

Friday, November 22, 2013

bava kama 57b - petur for a shor פקח that fell into your bor

The Gemara's conclusion is that if a שור פקח falls into your bor during the day, then you are patur.  However, the Rambam rules in 12:16 in Nizkei Mammon that if the shor only got damaged then the owner of the Bor would be Chayav.

The Raavad asks the obvious question -- if the shor is פקח then what is the basis to differentiate between damage and death? You should be completely patur for this שור פקח. Interestingly, The Raavad is ok with the Rambam stating that for a person who gets HURT, that you would be chayav even though for the animal you should not.

Explaining the Raavad is simple, since we have learned about people אין דרכן של בני אדם להתבונן בדרכים so this leads to a chiyuv for a person that falls into the Bor while still being patur for a שור פקח . The Maggid Mishne explains that perhaps since a person thinks so he does not look around as carefully as a Shor.

So, now we just need to understand the Rambam.
The Maggid Mishne explains that this פקחות of the animal only means that it avoids a serious pit that could kill it but its not smart enough to avoid all damaging obstacles. Based on this, the question arises -- what if the animal falls into a bor that COULD have killed it but only got hurt. Using this logic, do we say that the בעל הבור is patur? The Aruch Hashulchan (choshe mishpat 410:24) says yes. Minchas Chinuch also thinks that this would be correct but says there is no indication of this in the Rambam so he writes ויש ליישב

Friday, October 4, 2013

Bava kama 44b (and 13b) - damage done by shor hefker

We see on 44b that according to חכמים we kill the animal that is hefker and Rabbi Yehuda disagrees.
When we learned 13b, we saw Rabbi Yehuda's opinion there but it was quoted by Ravina, so one could have thought that this was according to everyone (even though Rabbi Yehuda is brought there as proof for this).
The Rambam paskens both sugyos. In 8:4 he paskens that a shor hefker is patur when it does damages using pasuk of שור רעהו. But the Rambam paskens like חכמים in our sugya and (10:6) and says that we kill a shor hefker
The Lechem Mishne and others point out that there is no contradiction. The sugya on 13b is discussing damage while our sugya discussed death. Even though Rabbi Yehuda is brought as proof by Ravina, the petur of shor hefker by nezikin is according to everyone.
Perhaps we can suggest that according to חכמים , when we kill the shor we are not killing it as a punishment for the owner but to remove a dangerous being from the world but in the case of nezek, if there are no owners we have no one to punish. Rabbi Yehuda could be saying that even in killing, the focus is on the owner who did not guard.
However, this explanation does not cover the case of a shor that damages and then the owner is mafkir, where even here the former owners are not liable.

Friday, July 5, 2013

bava kama - mishna 19b -- is meshune keren?

The Mishna on 19b begins a discussion about שן. It then discusses eating כסות או כלים and says the chiyuv is only 1/2 nezek, as Rashi explains - due to the fact that this is meshune. Does this automatically mean we have jumped to keren? Perhaps not. My Rebbe, Rav Lichtenstein שליט"א points out that the Rambam brings this halacha in perek 3 of hilchos nizkei mammon, which discusses nizkei shein. If it were really supposed to be keren, then it would have made sense for this to be elsewhere in the Rambam's discussion of halachos related to keren. 

This raises a possibility that meshune is a general din, not necessarily related to keren per se but any av. This would work well with the first mishna in the second perek as well which changes from regular regel to mevaetes (see tosfos there who says we did jump to keren but it is brought here since the din is parallel). There is one problem though with applying meshune to regel since they seem to be contradictory as the definition of regel is normative - היזיקו מצוי. Rav Lichtenstein suggested that the בעיטה that is meshune is in the context of a normal action of walking, as opposed to בעיטה we saw earlier that is pure keren -- in mishna 15b.

This solves another problem in that we we have been seeing two different chiyuvim of keren: כוונתו להזיק and משונה and they dont necessarily go together. So, we would now say that only כוונתו להזיק is keren. Of course we need to work this out with the issue if petur reshus harabim as well.

Friday, June 28, 2013

בתר מעיקרא או בתר תבר מנא אזלינן Bava Kama 17b

Rashi explains the din of Rabba where a person threw an item and then someone else broke it, that patur mean that the thrower is chayav and thus we see that Rabba holds בתר מעיקרא. The Ramban explains that the Rif understood Rabba differently, that Rabba actually holds בתר תבר מנא אזלינן and the meaning of patur is that therefore no one is chayav, since the thrower did not break it and the person who actually broke it broke a worthless object since it was about to be broken.

Rav Soloveitchik (רשימות שיעורים) explained this machlokes between Ramban and Rashi as follows:
According to the Ramban, each perpetrator should be looked at inidividually. For this reason, there is no chiyuv. The one who threw it would have been chayav if we held בתר מעיקרא and even had he died before the nezek happened, would have been chayav. But since we hold בתר תבר מנא, the only significant time is the breakage when the item was worthless. However, Rashi holds that we need to consider both times -- מעיקרא and תבר מנא, as both together caused the damage. The question of the sugya is who do we pin the chiyuv on (not who is responsible). Whichever we pick will create a chiyuv on the one individual and uproot the other's chiyuv, and creates an obligation on the entire act (thus having to pay even if we say בתר תבר מנא).

One other interesting note on this. The Ramban asked on Rashi from a case of murder: where a person throws a baby off a roof and someone else catches the baby on his sword (26b). In this case,the sugya says that the thrower is patur. What is the difference? Rav Soloveitchik points out the Ramban's question is very difficult. Unlike an inanimate object that we may consider worthless and broken as soon as it will break, this is not true in the halacha of people. As long as the baby is still alive it has a full status of being alive in the spheres of יבום and ערכין. Therefore, there is no possibility to consider בתר מעיקרא by murder.

Tuesday, June 4, 2013

Bava kama 9b - hiddur is an increase of 1/3 of what?

Tosfos suggests that the 1/3 increase is not in cost but in the size of your esrog that if you have one that is the size of a nut, then increase by 1/3. The Beis Yosef explains this idea based on others, that the meaning of Tosfos is that you are only being asked to do this hiddur of a 1/3 if you are in a state where you have the bare minimum of the mitzva. Then you should try to increase 1/3. But if you have a decent size esrog, then no 1/3 increase is necessary.

bava kama 9b - Hiddur Mitzva

There is a famous chakira about the din of hiddur mitzva, זה א-לי ואנוהו if it is a separate halacha we apply to mitzvos or if it is incorporated into the mitzva itself. Rav Soloveitchik explained that this chakira explains the two side of the question in our gemara of the 1/3 hiddur is מלבר or מלגיו. He explained that if we say that it is part of the mitzva, then it makes sense that when we look at the chefza you have at the end, that 1/3 of it be hiddur, thus it would be מלבר but if it is just a separate halacha then using what you have now, you tack on the hiddur of 1/3