Sanhedrin (74a) If one pursuer was pursuing another pursuer in order to save him, i.e., if he was trying to save the person being pursued by killing the pursuer, and while doing so he broke vessels belonging either to the pursuer or to the one being pursued, or to anyone else, he is exempt from paying for them. The Gemara comments: This is not by strict law, as if one who saves himself at another’s expense is liable to pay for the damage, certainly one who saves another at the expense of a third party should bear similar liability.
This is also mentioned in bava Kamma without mention of Takkana
Bava Kamma (117b) And with regard to a pursuer who was chasing after another pursuer in order to save the latter’s intended victim, and he broke vessels during the chase, whether they belonged to the pursued individual, i.e., the individual attempting murder, or to anyone else, he is exempt from payment. The Gemara notes: And this is not the halakha by Torah law, but if you do not say so, you will not have any person that saves another from a pursuer.
Shulchan Aruch (M 380) doesnt say there is a takkanah
ואחד שרדף אחר הרודף להציל את הנרדף ושבר כלים בין של רודף בין של כל אדם פטור כדי שלא יבואו מלימנע מלהציל את הנרדף:
While the gemora and Shulchan Aruch simply note that we ignore the halacha in this case the Rambam asserts there is a Rabbinic decree to ignore the Torah rule in this case. None of the comentaries mention this assertion of the Rambam
Rambam (Chovel Umazick 8:14) (When a person pursues a rodef to save the person he is pursuing, and in so doing breaks utensils - whether those belonging to the rodef or those belonging to another person - he is not liable. This does not follow the letter of the law, but is a Rabbinic ordinance, enacted so that a person will not refrain from trying to save his colleague, or will hesitate and proceed carefully while he chases after the rodef.
רודף אחר רודף להצילו ושיבר את הכלים בין של רודף בין של נרדף בין של כל אדם פטור ולא מן הדין שאם אי אתה אומר כן נמצא אין לך כל אדם שמציל את חבירו מיד הרודף:
So this is "teleological" halacha - because keeping strict torah law would be an impediment /deterrent for someone to carry out the risk of din rodeif.
ReplyDeleteDoes the principle "If we make him responsible for damages, he won't help his fellow out" play a role?
ReplyDeletethe main issue is whether a formal rabbinic decree is necessary
DeleteThe gemora makes no mention while Rambam clearly assumed it happened
Is there always a mention of a formal rabbinic decree in the gemara, or can it also be inferred that it happened?
Deletethat is the question
DeleteMany times the gemora states explicitly that a decree was made because of x but here there is no mention
“Rule Exception or Precedent” Interesting. Today’s daf hayomi Baba Kama 106a:
ReplyDelete“R. Hamnuna raised an objection [from the following]: Where an oath was imposed upon a defendant five times [regarding the same defence], whether in the presence of the Court of Law or not in the presence of the Court of Law, and he denied the claim [on every occasion], he would have to be liable [in accordance with Lev. V, 21-24] for each occasion. And R. Simeon said: The reason is that [on each occasion] it was open to him to retract and admit the claim [Shebu. 36b]. Now in this case you can hardly say that the action of the Court was anticipated, for it is stated: Where an oath was imposed upon a defendant [which naturally would mean, by the sanction of the Court]; you can similarly not say that it was done outside the Court of Law, for it is stated in the presence of the Court of Law [This Mishnaic text, from which it could be gathered that, though an oath has already been imposed and taken, the case could still be reopened, will thus be in contradiction to the view of Rab!].”
Beautiful. My theory. I support the view of Rab and not that of his student R. Hammuna. Why? Rab argues that Lev. V. 21-24 is meant as a rarity only in court and after court resolution cannot be reopened. To Rav certainly not 5 times on the same ox, pension whatever that Shimon claims that Reuven stole from him. To Rav once Shimon lost in court over the same ox pension whatever, Shimon cannot claim again and again in court Lev. V. 21-24 to sue Reuven. Lev. V. 21-24 to Rav is a rarity much as death sentences are meant as rarities etc. So beautiful Leviticus 5 "20And the LORD spoke unto Moses, saying: 21If any one sin, and commit a trespass against the LORD, and deal falsely with his neighbour in a matter of deposit, or of pledge, or of robbery, or have oppressed his neighbour; 22or have found that which was lost, and deal falsely therein, and swear to a lie; in any of all these that a man doeth, sinning therein; 23then it shall be, if he hath sinned, and is guilty, that he shall restore that which he took by robbery, or the thing which he hath gotten by oppression, or the deposit which was deposited with him, or the lost thing which he found,"
“Rule Exception or Precedent” Interesting. Today’s daf hayomi Baba Kama 108a:
ReplyDelete“ Said Raba: Come and hear: If a man said to another in the market: Where is my ox which you have stolen, and the other rejoined, I did not steal it at all, whereupon the first said, Swear to me, and the defendant replied, Amen, and witnesses then gave evidence against him that he did steal it, he would have to repay double, but if he confessed on his own accord, he would have to pay the Principal and a Fifth and bring a trespass offering [The Mishnah of Shebu. 49a, where, however, the adjuration is missing, but v. also Jer. ibid. 3]. Now here it is the witnesses [and not at all the oath] who make him liable for double payment [and thus subject to Ex. XXII, 8], and yet it was only where he confessed of his own accord that he would be subject to the law of a Fifth [i.e., Lev. V, 24], whereas where he made a confession after [the evidence was given by] the witnesses, it would not be so. But if you assume that it is the oath involving liability of double payment that exempts from the Fifth, why then [in this case] even where he made confession after the evidence had already been given by the witnesses should the liability for the Fifth not be involved? Since the oath here was not instrumental in imposing the liability for double payment why should it not involve the liability for the Fifth? This would seem conclusively to prove that a pecuniary value for which there is liability to make double payment exempts from the Fifth, would it not? This could indeed be proved from it.”
Beautiful Excellent Talmudic discussion my theory. Reuven steals ox pension whatever from Shimon. Shimon confronts Reuven in the market. Torah makes no mention of double payment in Leviticus 5:23 “then it shall be, if he hath sinned, and is guilty, that he shall restore that which he took by robbery, or the thing which he hath gotten by oppression, or the deposit which was deposited with him, or the lost thing which he found,”
My theory is that Shimon has full satisfaction because Leviticus 5:23 “then it shall be, if he hath sinned, and is guilty,” etc. My theory Shimon has limited satisfaction with the court forcing Reuven to pay double per Exodus 22:8 “For every matter of trespass, whether it be for ox, for ass, for sheep, for raiment, or for any manner of lost thing, whereof one saith: ‘This is it, ‘the cause of both parties shall come before God; he whom God shall condemn shall pay double unto his neighbour.”
My theory is that Shimon has limited satisfaction winning in court Exodus 22:8 knowing how bad the courts are. My theory Shimon needs the double payment for his dignity in going to court. Raba says here when Reuven confesses on his own accord he stole the ox pension whatever from Shimon, Reuven does not pay double of Exodus 22:8. Good. My theory the penalty of the Fifth [i.e., Lev. V, 24], then, is adequate to Shimon. The Halacha accords with Raba.
“Rule Exception or Precedent” Interesting. Today’s daf hayomi Baba Kama 111a:
ReplyDelete“FOR HE WHO BRINGS [THE PAYMENT FOR] ROBBERY BEFORE HAVING BROUGHT THE TRESPASS OFFERING [FULFILLS HIS DUTY, WHEREAS HE WHO BRINGS THE TRESPASS OFFERING BEFORE HAVING BROUGHT THE PAYMENT FOR ROBBERY DID NOT FULFILL HIS DUTY]. Whence can these rulings be derived? Said Raba: Scripture states: Let the trespass be restored unto the Lord, even to the priest, beside the ram of the atonement whereby an atonement shall be made for him [Numbers 5 “5And the LORD spoke unto Moses, saying: 6Speak unto the children of Israel: When a man or woman shall commit any sin that men commit, to commit a trespass against the LORD, and that soul be guilty; 7then they shall confess their sin which they have done; and he shall make restitution for his guilt in full, and add unto it the fifth part thereof, and give it unto him in respect of whom he hath been guilty. 8But if the man have no kinsman וְאִם אֵין לָאִישׁ גֹּאֵל to whom restitution may be made for the guilt לְהָשִׁיב הָאָשָׁם אֵלָיו ,to whom restitution may be made even the priest’s; besides the ram of the atonement, whereby atonement shall be made for him.”], thus implying [probably in the term beside] that the money must be paid first. ”
במדבר פרשת נשא פרק ה פסוק ח
וְאִם אֵין לָאִישׁ גֹּאֵל לְהָשִׁיב הָאָשָׁם אֵלָיו הָאָשָׁם הַמּוּשָׁב לַיקֹוָק לַכֹּהֵן מִלְּבַד אֵיל הַכִּפֻּרִים אֲשֶׁר יְכַפֶּר בּוֹ עָלָיו:
רש"י
מלבד איל הכפורים - האמור בויקרא (ויקרא ה כה) שהוא צריך להביא:
Beautiful my theory. Atonement from Heaven requires, first and foremost, returning what he or she stole to the rightful owner. 8But if the man have no kinsman וְאִם אֵין לָאִישׁ גֹּאֵל to whom restitution may be made for the guilt לְהָשִׁיב הָאָשָׁם אֵלָיו , wow terrible redeemer to whom restitution may be made, the Torah says to whom restitution may be made.
Update on me just out on NYS Court of Appeals website Feb 13 2024 2024-116 Aranoff v Aranoff. This means that in about a month or so the judges will rule on my claim for my TIAA pension that Susan stole from me 55% from early 1994 with no end in sight, ב"ה.
“Rule Exception or Precedent” Interesting. Today’s daf hayomi Baba Kama 112a:
ReplyDelete“Our Rabbis taught: He shall restore the misappropriated article הַגְּזֵלָה which he took violently away אֲשֶׁר גָּזָל [Lev. V, 23]. What is the point of the words which he took violently away אֲשֶׁר גָּזָל [Is this not redundant?]? Restoration should be made so long as it is intact as it was at the time when he took it violently away. Hence it was laid down: If one misappropriated [foodstuff] and fed his children they would not be liable to repay [for the foodstuff was no longer intact.] If, however, he left it to them [intact], whether they were adults or minors, they would be liable.”
Beautiful fascinating Talmudic discussion. My theory. Leviticus 5:23 “When one has thus sinned and וְהָיָה כִּי יֶחֱטָא , realizing his guilt וְאָשֵׁם , would restore וְהֵשִׁיב that which he got through robbery or fraud אֶת הַגְּזֵלָה אֲשֶׁר גָּזָל אוֹ אֶת הָעֹשֶׁק אֲשֶׁר עָשָׁק , or the deposit that was entrusted to him, or the lost thing that he found,”
ויקרא פרשת ויקרא פרק ה פסוק כג
וְהָיָה כִּי יֶחֱטָא וְאָשֵׁם וְהֵשִׁיב אֶת הַגְּזֵלָה אֲשֶׁר גָּזָל אוֹ אֶת הָעֹשֶׁק אֲשֶׁר עָשָׁק אוֹ אֶת הַפִּקָּדוֹן אֲשֶׁר הָפְקַד אִתּוֹ אוֹ אֶת הָאֲבֵדָה אֲשֶׁר מָצָא:
מדרש הגדול ויקרא פרשת ויקרא פרק ה פסוק כג
והיה. מיד. מה יעשה והשיב זו מצות עשה. אינה שם מה יעשה ת"ל ושלם. שאם הגזילה עומדת בעינה מחזירה, ואם לאו מחזיר את דמיה.
My theory. Wow if the stolen/misappropriated whatever is extant, of course thief/liar/fraudster whatever must restore וְהֵשִׁיב that which he got through robbery or fraud. If not extant because the thief fed his children with the stolen/misappropriated whatever, the children don’t owe money to the rightful owner. My theory as long as stolen/misappropriated whatever is extant even children of the thief/fraudster whatever do owe money Beautiful. Hey my NYS Court of Appeals return date February 23, 2024 2024-116 [Gerald] Aranoff v [Susan] Aranoff my TIAA 55% pension is extant going nonstop to Susan! My 6 children from Susan may owe me money according Baba Kama. Any thoughts, KA, Garnel, IR, DT ?