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Bava Kama, 28


OPINIONS: The Gemara says that if an Eved Ivri who was Nirtza refuses to leave his master's home upon the arrival of the Yovel year, and the master hits and wounds him in order to make him leave, the master is exempt from liability. Initially, the Gemara assumes that the master is exempt because he is allowed to take the law into his own hands and make someone leave his house even when he would otherwise incur no loss (since the Eved -- if he stays in the master's home -- will have to pay the master for any benefit he receives in the master's home after his term of servitude has ended).

The Gemara concludes that this Halachah has nothing to do with taking the law into one's own hands. Rather, during the Eved's term of servitude, the master gave the Eved a Shifchah Kena'anis, and the Eved now wants to remain with her. It is forbidden mid'Oraisa, though, for the freed Eved to live with a Shifchah Kena'anis. The master, therefore, is allowed to hit him in order to chase him away to prevent him from transgressing an Isur d'Oraisa of living with a Shifchah Kena'anis (RASHI DH Isura).

Does this mean that it is Halachically permitted to stop any Jew from doing an Aveirah even if it involves physically harming the Jew? And if it is permitted, how can we be sure that an unscrupulous Jew will not indiscriminately hit another Jew, claiming that he saw him transgress an Isur?

(a) The ROSH (3:13) concludes, based on this Sugya, that it is permitted to hit another Jew in order to prevent him from transgressing an Isur. Therefore, if one sees a Jew chasing another Jew to hit him, he may use physical force in order to stop the perpetrator. This ruling of the Rosh is cited by the REMA (Choshen Mishpat 421:13).

The TERUMAS HA'DESHEN (#414) presents a similar ruling and permits a Jew to hit his or her spouse in order to prevent the spouse from cursing his or her parents. The REMA cites this ruling as a "Yesh Omrim" (Even ha'Ezer 154:3).

This seems to be the opinion of the SHE'ILTOS (#27) who writes that if one sees someone who is not acting properly, it is permitted "to hate him, to curse him, and to do physical acts to him." It seems clear from the She'iltos that not only is it permitted to hit a person who is doing an Aveirah right now in order to stop him, it is also permitted to hit him in order to prevent him from returning to that Aveirah in the future. This is also clear from the words of the Terumas ha'Deshen. It seems clear as well from our Sugya, since the Eved just *wants* to reunite with the Shifchah, and yet it is permitted for the master to hit him in order to prevent him from performing that Aveirah in the future. This also seems to be the intention of RASHI in Erchin (16b, DH Yachol Lo Yakenu).

According to this view, when the Gemara in Kesuvos (86a) states that if a person refuses to build a Sukah or hold a Lulav on Sukos, "they beat him until his soul departs," the Gemara is not referring only to Beis Din, but rather any person may take such measures in order to stop a person from transgressing a Mitzvah. This is how the NESIVOS HA'MISHPAT (CM 3:1) explains the Gemara. (When the Gemara says "until his soul departs," it does not mean that we actually kill him, since the person is not doing an Aveirah for which one must die instead of transgressing, but rather that we beat him until he is on the verge of death. However, the Nesivos himself in CHAVOS DA'AS (Yoreh De'ah 161:6), cited by RAV SHMUEL ROZOVSKY (Chidushim to Bava Basra, 10:2), interprets that Gemara as referring specifically to Beis Din, and that it is allowing them to beat the person to death.)

However, this is not an absolute sanction to hit anyone acting improperly. The Terumas ha'Deshen permits only a master (in the case of a slave), or someone who is responsible for someone else's actions (such as a husband who is responsible for his wife), to hit the person under his jurisdiction who is acting improperly (when all other measures have been of no avail).

The MAHARSHAL (Yam Shel Shlomo 3:9) writes that only a person who is "Muchzak b'Kashrus," well-known to be upright and G-d-fearing, is permitting to use physical force to stop another person from sinning. This may be based on the same principle as described above; a person who is known to be upright, to whom others look for guidance, has a responsibility to ensure that the people around him act properly.

Why, then, does the Rosh permit hitting someone who is chasing another person to harm him? The Maharshal explains that when the Aveirah that is being done is Bein Adam l'Chaveiro, then anyone is permitted to stop the sinner (for the benefit of the person who is being harmed).

According to the Rosh, how are we to understand the Gemara's proof that a person may take the law into his own hands from the case of the woman who hurts someone who is trying to harm her husband? The Gemara should have answered that there, too, it is permitted for the woman to hurt the person trying to harm her husband only to stop the perpetrator from transgressing the Isur of hitting another Jew!

CHIDUSHEI RAV SHMUEL ROZOVSKY (Bava Basra 10:5) points out that the Rosh himself divides into two cases the Halachah of hitting another Jew to prevent him from causing harm to a third Jew. First, he writes that if a person sees someone hitting his father, children, or brother, then he is allowed to hit the person if he cannot stop him in any other way, because we rule that it is permitted *for one to take the law into his own hands*. The Rosh continues and says that, similarly, if one sees one Jew trying to harm another Jew and he has no other way to stop him, he is permitted to hit the perpetrator *in order to prevent him from doing an Isur*. Why does the Rosh give a different Heter with regard to hitting in order to save one's close relative? There, too, he could have said that it is permitted to hit the perpetrator in order to prevent him from doing an Isur! It must be that the Halachah of preventing one from doing an Isur applies only when one derives no personal gain from hitting the perpetrator. If, though, one derives personal gain, such as when the sinner is trying to hit one's close relative (or is trying to hit the person himself), then it is not permitted to hit him in order to prevent him from doing an Isur, since it will not be clear that the person's intentions are pure. (That is, even to prevent an Isur Bein Adam la'Chaveiro, there are limitations as to who is allowed to stop another person by harming him.)

Rav Shmuel Rozovsky points out that this distinction can be learned from Rashi (DH Isura) who specifies that it is permitted to hit someone to prevent him from doing an Isur since "he is not doing it for his own self (for his own benefit)." This, then, is the intention of the Gemara's question from the case of a woman who hits another man to save her husband; since she is doing this to save her close relative (her husband), it is not permitted to do it in order to prevent the other person from doing an Isur.

(b) The KETZOS HA'CHOSHEN (in Meshovev Nesivos 3:1) rules that it is permitted to hit another Jew only if he is involved in an Aveirah at that moment. It is not permitted to physically harm him in order to prevent him from performing an Aveirah in the future, for otherwise we would not require Mumchin (expert Dayanim) to force a person to agree to give a Get when the circumstances require it (see Gitin 88b, and Tosfos in Sanhedrin 2b). Similarly, the Gemara in Kesuvos (86a) permits only *Beis Din* to beat a person to force him to agree to fulfill a Mitzvas Aseh, since the person is not presently involved in the Isur that we are trying to prevent him from doing. (According to the Rishonim mentioned above, forcing a person to give a Get is different and requires Mumchin, because a Get requires "Ratzon" -- he must give it willingly and not just because he is forced. Alternatively, when a person is doing what is clear to us to be an Aveirah, then anyone may stop him with physical force, but in a situation where Beis Din is required to determine what the person must do, then only the law-enforcement agents (Shotrim) can use physical force to force someone to do what a Beis Din of Mumchin requires him to do (see CHASAM SOFER, CM 177, DH Gimel).

(c) When the RAMBAM (Hilchos Avadim 3:5) cites our Gemara, he does not write that it is *permitted* for the master to hit the Eved to prevent him from transgressing the Isur, but rather *if* he hits the Eved, he is exempt from paying for damages. The NETZIV (in HA'EMEK SHE'EILAH 27:6) infers from this that the Rambam does not permit one to hit another Jew, l'Chatchilah, even to prevent him from transgressing an Isur. The SHA'AR HA'TZION (608:8) makes a similar inference from the Rambam in Hilchos De'os (6:8), who writes, when discussing the Mitzvah of Tochechah (rebuke), that one may rebuke a known sinner and disgrace him, but he does not write that one may hit him (like the She'iltos writes). In fact, in Hilchos De'os (6:5) the Rambam cites the Gemara from which Rashi learns that it is permitted to hit a person as a form of rebuke, but he explains the Gemara differently. According to the Rambam, the Gemara is not discussing rebuke, but it is simply saying that if a person hits his friend out of hatred, he does not transgress the Isur of "Lo Sisna Es Achicha Bilvavecha" -- "Do not hate your brother in your heart" (Vayikra 19:17), since he is *expressing* his feelings of hatred and not hiding them in his heart.

How will the Rambam learn the Gemara in Kesuvos that teaches that we may use physical force to make a person build a Sukah or hold a Lulav? In fact, the Rambam himself quotes this Gemara in Hilchos Chametz u'Matzah (6:12). Apparently, the Rambam learns that the Gemara's ruling only applies to Beis Din which, as its role as being the overseer of the conduct of the people, has a greater responsibility to ensure that Jews are following the Mitzvos properly. (See the SHA'AR HA'TZION, ibid., in the name of the RAMBAN to Devarim 27:26.) (The Rambam is not necessarily saying that Beis Din is different because the Dayanim are Mumchin; even a Beis Din of Dayanim who are not Mumchin may be permitted to hit a person under such circumstances.)


QUESTION: Rav teaches that when a person leaves his items in Reshus ha'Rabim and does not make them Hefker, he is Chayav even for damage caused to Kelim that the objects cause (unlike a normal Bor). Rav explains that since the owner was not Mafkir the obstacle, it has the status and Halachos of a *Shor* and not of a Bor.

How can Rav give an object left as an obstacle in Reshus ha'Rabim the status of a Shor? It seems that Rav is comparing an obstacle in Reshus ha'Rabim to Keren, and not to Shen and Regel (since Shen and Regel are not Chayav in Reshus ha'Rabim). However, if Rav is comparing this obstacle to Keren, then the owner should pay only Chatzi Nezek, like one pays for Keren!

In addition, how can Rav compare damage caused by an obstacle, which is inanimate, to damage caused by an animal? A person is more responsible for damage caused by his animal, since an animal has "Ru'ach Chaim" (Mishnah 2a), and is "Darcho Leilech ul'Hazik" (end of 9b), and an animal that damage s with Keren has *intent* to damage -- "Kavanaso l'Hazik" (2b, 5b)! (TOSFOS 3b, DH mi'Shoro)


(a) TOSFOS (3b) explains that Rav indeed learns that such a Bor is Chayav from the Halachah of *Keren*. With regard to why one pays Nezek Shalem -- and not Chatzi Nezek as for Keren (Tam) -- for damage caused by his object in Reshus ha'Rabim that he was not Mafkir, Tosfos explains that there is no logical distinction between Tam and Mu'ad for inanimate objects. Therefore, even though one pays Chatzi Nezek for the first damages caused by an animal, and then one pays Nezek Shalem, for damages caused by an inanimate object one pays Nezek Shalem for all damages, even the first. (The RA'AVAD and RASHBA here present a similar argument, explaining that these objects are comparable to a Keren that is a Mu'ad, since they are "Mu'adim l'Hazik" in that they are in a position to do damage from the start.)

How can we learn the Chiyuv for damage caused by an inanimate object from Shor, which is more Chamur? Tosfos explains that Rav learns the Chiyuv of these objects from a Mah ha'Tzad between Shor and Bor, similar to the Mah ha'Tzad mentioned in the Gemara earlier (6a). However, Tosfos asks that if Rav learns that one pays for damages of such an object through a Mah ha'Tzad, then he should attribute the leniencies of both sides of the Mah ha'Tzad to this object, and thus the owner should be *exempt* from damages done to Kelim, like Bor, since the Halachah that is derived cannot be more Chamur than either of the Halachos from which it is derived! Tosfos does not answer this question.

The MAHARI KATZ and RABEINU YECHIEL cited by the Shitah Mekubetzes explain that the primary source for the Halachah that one is Chayav for one's obstacles left in Reshus ha'Rabim, according to Rav, is from Shor, and not from Bor, and therefore it has all of the Chumros of Shor.

TOSFOS RABEINU PERETZ and others cited by the Shitah Mekubetzes explain this further. Rav is not learning a Mah ha'Tzad from Shor and Bor equally. Rather, Rav is learning his Halachah through a Binyan Av from Shor. The only reason not to learn a Binyan Av is because of the questions that we mentioned (that one's object is not "Darcho Leilech ul'Hazik" and is not "Kavanaso l'Hazik"). In order to refute those Pirchos, Rav cites the Halachah of Bor, for which one is Chayav even though Bor, too, lacks those qualities. After we have refuted the Pircha, we can no longer ask that perhaps Bor is more Chamur because it has qualities that make the owner more responsible, since it has no such qualities. Therefore, Bor is simply being used to refute a Pircha on the Binyan Av from Shor, and it is not being used as an active partner in the derivation of the Halachah of one's obstacles left in Reshus ha'Rabim. (This is called a derivation learned through a "Palga d'Dina;" see MAHARSHA to Tosfos 6a, DH Tomar. See also BRISKER RAV to Hilchos Nizkei Mamon, and SHITAH MEKUBETZES citing the GILYON, for a different approach.)

(b) TOSFOS RABEINU PERETZ (3b) and the YAM SHEL SHLOMO (#8) explain that Rav learns that one is Chayav for damages caused to Kelim by such a Bor through a Mah ha'Tzad from *Shor* and *Esh*, and not from Shor and Bor. Since Bor is not used to derive the Chiyuv for these obstacles, we have no reason to exempt the owner from damage that they cause to Kelim. The Shitah Mekubetzes in the name of Mahari Katz points out that even according to this, one should be exempt for damages caused by such a Bor to items that are *Tamun*, just like one is exempt for such damages when caused by Esh.

This explains why Rav obligates one to pay Nezek Shalem for such damages, and why we cannot ask a Pircha from the fact that a Shor is a living being and has intent to damage. However, we should still be able to ask that a Shor, and Esh, are both "Darchan Leilech ul'Hazik" -- it is their normal manner to go and cause damage, while these objects to which Rav refers are inanimate and do not move (indeed, the Gemara on 9b considers this a Kula), and so we should not be able to derive these objects from Shor and Esh!

Perhaps he learns like the Ra'avad (9b) who explains the Gemara there differently (i.e. the Gemara is not referring to Keren, but to Regel, and the Kula is that one is exempt for damages of "Dash b'Niro," and not that its nature is different from that of Bor). Alternatively, he may learn like the RASHBA (10a, DH v'Lichechah), who explains that the words "Darcho Leilech ul'Hazik" actually refer to the fact that a Shor has intent to do damage and is a live animal (like the Mishnah says). If so, this Pircha cannot be asked on the Mah ha'Tzad from Shor and Esh.

(c) The RA'AVAD and RASHBA here explain that since the person left his objects in Reshus ha'Rabim knowingly, it is considered as though the damage that they caused was done with intent, making them just as Chamur as Shor.

This explains only why we cannot ask a Pircha from the fact that Shor is "Kavanaso l'Hazik." Why can we not ask a Pircha from the fact that a Shor has "Ru'ach Chaim" and is "Darcho Leilech ul'Hazik?" Perhaps they are consistent with their own opinions regarding the Gemara earlier (9b) where they do not explain "Darcho Leilech ul'Hazik" as being a separate Chumra, as we mentioned above (in (b)). "Ru'ach Chaim" also might not be a Pircha; since it is considered as though they are causing damage with intent, it is just as Chamur as any living animal.

(d) The RA'AVAD adds that perhaps the negligence of the person who places the objects in Reshus ha'Rabim is a strong enough factor to make him Chayav to pay Nezek Shalem, even in Reshus ha'Rabim. It seems that the Ra'avad is learning that the Chiyuv for these obstacles is derived from a Shor that causes damage with Regel, which is "Derech Hilucho," since these obstacles also cause damage by doing what they normally do (remaining still). Nevertheless, in contrast to Regel, one is not exempt for damage caused by these obstacles in Reshus ha'Rabim, since the negligence of the owner is involved in the damage, more than when a person's animal causes damage. Therefore, it is not reasonable to give it the leniencies that apply when a person's animal causes damage.

(e) The SHITAH MEKUBETZES cites TOSFOS TOSFEI HA'ROSH here who explains that we learn the Chiyuv of such obstacles not from Shor but from a Bor that is nine-Tefachim deep. The Yerushalmi (5:6; see Insights to 4b) explains that one is exempt for the death caused to a person and for damage caused to Kelim only by one's ten-Tefach Bor. For one's nine-Tefach Bor, for which one is Chayav for damages done to a person (like for damages done to an animal), one is also Chayav for damaging Kelim. These obstacles are comparable to a nine-Tefach Bor, and that is why one is Chayav for damages done by them to Kelim. (However, the RASHBA on 53b points out that the Bavli here and on 35a does not seem to agree with the Yerushalmi.)

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