THOUGHTS ON THE DAILY DAF
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Rosh Kollel: Rav Mordecai Kornfeld
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Bava Kama, 56
BAVA KAMA 56 - sponsored by Mr. and Mrs. D. Kornfeld in
prayer that Hashem may accept our prayers, in these days of Rachamim, and
speedily grant Klal Yisrael a true and complete redemption from all of their
enemies, returning His Shechinah to Tziyon and His people to His service!
1) SENDING WITNESSES TO TESTIFY FALSELY
QUESTION: The Gemara teaches that a person who hires false witnesses to
testify that one person owes money to another person is exempt from having
to reimburse the victim b'Dinei Adam, but he is nevertheless Chayav to pay
Why does the Beraisa discuss only a person who *hires* false witnesses? What
is the Halachah of one who *sends* witnesses by just asking them to testify
in court falsely, without paying them?
(a) TOSFOS (DH Ela) and the RASHBA explain that only when one *hires* false
witnesses is he Chayav b'Dinei Shamayim. If he merely *asks* them to testify
falsely, he is not Chayav at all, not even b'Dinei Shamayim, because he did
not expect them to listen to him and to transgress the prohibition of
bearing false testimony.
Tosfos adduces proof to this from the Mishnah later (59b, which our Gemara c
ites) which teaches that one who sends a fire with a Cheresh, Shoteh, or
Katan is Patur b'Dinei Adam and Chayav b'Dinei Shamayim. In contrast, when
one sends a fire with a Pike'ach, "the Pike'ach is Chayav," implying that
the sender is entirely Patur, even b'Dinei Shamayim.
Since the Mishnah does not specify that the sender is Patur only if the
Pike'ach has money and pays for the damage, it implies that the sender never
bears responsibility, even if the Pike'ach does not or cannot pay. (This
seems to be the intention of Tosfos. See, however, PNEI YEHOSHUA.)
The reason the sender is exempt from paying b'Dinei Shamayim is because of
the principle of "Ein Shali'ach l'Devar Aveirah," as the Gemara in Kidushin
(42b) infers from that Mishnah.
(b) The RITVA (Kidushin 42b), however, and the TOSFOS HA'ROSH (there) write
that even if a person merely *tells* witnesses to bear false testimony, he
is Chayav b'Dinei Shamayim. The Mishnah (59b) that exempts the person who
sends a fire with a Pike'ach is also exempting him from Dinei Shamayim at
the time that the Pike'ach actually pays and the victim was reimbursed. This
is also the opinion of the ME'IRI (Bava Kama 59b).
Why, then, does our Gemara refer to a person who *hires* false testimony,
rather than a person who just *tells* witnesses to bear false testimony? The
TOSFOS HA'ROSH (there) answers that the Beraisa means to teach that even one
who *hires* false witnesses is Patur m'Dinei Adam. The RASHBA here asks why
would it be necessary to teach such a point? Why would we think that by
simply hiring witnesses the person should be Chayav b'Dinei Adam? His act is
still not more than an act of "Gerama," of an indirect cause of damage to
the other person!
Some Acharonim explain that when a person *hires* someone to perform a task,
he is not appointing a Shali'ach, but rather he is hiring a worker. The
principle of "Ein Shali'ach l'Devar Aveirah" might not apply to a worker,
since "the hand of the worker is like the hand of the employer" ("Yad Po'el
k'Yad Ba'al ha'Bayis"). Therefore, the Beraisa must teach that even a hired
worker is not allowed to perform an Aveirah for the one who hired him.
The SHACH (Choshen Mishpat 32:3) answers that the Beraisa refers
specifically to *hiring* false witnesses, because normally a person will not
agree to bear false testimony unless he is paid for it. The Shach there
cites a strong proof for the opinion of the Ritva from the Gemara in
Kidushin (43a) which teaches that when a person sends a Shali'ach to kill a
third person, although the sender is not punished with a "great punishment"
("Dina Rabah") because of "Ein Shali'ach l'Devar Aveirah," nevertheless the
sender is punished with a "minor punishment" ("Dina Zuta"). It seems clear
from the Gemara that there is punishment b'Yedei Shamayim for a person who
simply asks his friend to harm someone else for him, even if he does not
hire the friend. (The TOSFOS HA'ROSH in Kidushin preceded him with this
proof, and the SEFER HA'MIKNAH there and PNEI YEHOSHUA here cite this proof
How will Tosfos respond to this proof for the view of the Ritva, that the
sender is Chayav b'Dinei Shamayim even when he did not hire the witnesses?
The CHAVOS YA'IR (#166) answers that Tosfos agrees that one who sends false
witnesses without hiring them is punished with "Dina Zuta." Rather, what he
means is that he does not have a "Dina Rabah," he is not punished with a
The TUMIM (32:2) explains this further. He points out that the Chiyuv
b'Yedei Shamayim to which our Gemara refers is not merely divine punishment,
but rather an obligation to *compensate* monetarily the person who was
damaged in order to exempt oneself from divine retribution. Only if the
crime that he committed is punished with a "Dina Rabah" will that Chiyuv
b'Yedei Shamayim obligate him to compensate the victim, since "Dina Rabah"
means that it is as if the sender actually caused the victim's loss. When
the act is punishable only with a "Dina Zuta," it means that the sender is
not actually responsible for the victim's loss, and therefore he can gain
atonement by simply repenting without compensating the victim.
A similar explanation is offered by the KETZOS HA'CHOSHEN there and by the
CHACHAM TZVI (#138).
The difference between the Chiyuv Mamon of a "Dina Rabah" and the Chiyuv of
a "Dina Zuta" can be demonstrated from our Gemara as well. The Gemara says
that if a person withholds his testimony that could prevent a loss to
another person, it is obvious that he is Chayav b'Dinei Shamayim, because
the verse says about such a person, "v'Nasa Avono" (Vayikra 5:1). How can we
prove from "v'Nasa Avono" that he must compensate the victim b'Dinei
Shamayim and not only that he is punished b'Dinei Shamayim? The Beraisa
obligates the person to pay the victim b'Dinei Shamayim, and that would not
seem to be apparent from the verse! It must be that "v'Nasa Avono" implies a
"Dinah Rabah" b'Yedei Shamayim, and whenever such a Din exists b'Yedei
Shamayim, the sinner cannot be exonerated unless he compensates the victim
monetarily. Why, then, does Tosfos write that if a person tells someone to
bear false testimony, he does not have to pay the victim in order to achieve
atonement (TAL TORAH)? The answer is that when a person tells someone to
bear false testimony he is punished only with "Dinah Zuta," and atonement
can be achieved, therefore, without paying the victim.
The TOSFOS HA'ROSH in Kidushin does not accept this distinction. He writes
that even though one who tells someone to cause harm to a third person is
punished with only "Dina Zuta", it is logical that he will not achieve
atonement unless he compensates the victim monetarily. He therefore argues
with Tosfos who says that if one does not hire the witnesses, he is not
Chayav to pay the victim b'Dinei Shamayim.
It would seem that Tosfos ha'Rosh views "Dina Zuta" differently than Tosfos.
Perhaps he learns like Rashi in Kidushin, that "Dina Zuta" means that the
one who sent another person to harm a third person is only considered to be
doing an act of "Gerama," an indirect causative act, in the harm that was
caused. That is why he receives a more lenient punishment b'Yedei Shamayim.
If the punishment b'Yedei Shamayim is in response to the loss that the
sinner caused to the third person, then it is logical that he will not
achieve atonement unless he compensates the third person. Tosfos, in
contrast, might be learning that the "Dina Zuta" is not a punishment for the
loss that the third person incurs, but a punishment for causing the person
who was sent to do a sin. Consequently, the sender does not have to
compensate the victim in order to achieve atonement.
The Acharonim point out that there are times where the sender is not even
punished with "Dina Zuta" b'Dinei Shamayim. They prove this from the Gemara
in Sanhedrin (29a) which says that the Nachash ha'Kadmoni could have
exempted itself from all punishment with the claim that Adam ha'Rishon
should have listened to Hashem and not to him -- "Divrei ha'Rav v'Divrei
ha'Talmid, Divrei Mi Shom'in." (This is the same argument which teaches the
principle that "Ein Shali'ach l'Devar Aveirah" -- a Shali'ach cannot be sent
to do an Aveirah on behalf of the sender, but rather the Shali'ach himself
is held culpable for the Aveirah.) The Gemara implies that this would have
exempted the Nachash from any punishment b'Yedei Shamayim. Why should that
be so? The Nachash should have still been Chayav a "Dina Zuta," just like
the person who sends another person to kill a third person! (SHACH Choshen
Mishpat 32:3, and BI'UR HA'GRA there)
1. The VILNA GA'ON explains that "Dina Zuta" applies only to one who sends a
Shali'ach to kill, but not to do any other Aveirah. The reason for this is
that the Torah warns that even if you see that a person's life is in danger,
you must rescue him, because of "Lo Sa'amod Al Dam Re'eicha," and thus
certainly one may not put the other person's life in danger, even with a
verbal suggestion. (The MAHARITZ CHIYUS here cites a Midrash in Bereishis
Rabah which derives from a verse to show that one is punished for sending
someone else to kill another person. The verse is specifically addressing
the sin of Retzichah, murder.) The Vilna Ga'on writes, based on this, that
one who sends someone to testify falsely will not be punished even with
"Dina Zuta." (It is not clear why one cannot argue that just as one is
obligated to prevent a loss to another person's property (RASHBAM in Bava
Basra 53a, DH Mavri'ach Ari; see Insights to Bava Kama 2a), one is certainly
obligated not to *cause* a loss to another person, even by suggesting to
others to cause a loss.)
2. The PNEI YEHOSHUA and HAGAHOS IMREI BARUCH on the Shulchan Aruch add that
if the sender does not simply ask another person to do a sin for the benefit
of the sender, but rather he convinces the person to sin for that person's
own benefit, then the sender is not punished with "Dina Zuta," since the
Aveirah was ultimately done for the benefit of the person who sinned and not
for the sender. (Obviously, the sender will transgress the Isur of "Lifnei
Iver Lo Siten Michshol" (Vayikra 19:14), but he will not be punished for the
act that was actually done. In the case of the Nachash, the Isur of "Lifnei
Iver" could not obligate the Nachash, because he was not commanded to
observe that Isur, but only the Isur of eating from the Etz ha'Da'as, like
all the other creations.)
2) THE STATUS OF ONE WHO WATCHES A LOST ITEM
QUESTION: The Gemara discusses whether a Shomer Aveidah is like a Shomer
Chinam (Rabah) or like a Shomer Sachar (Rav Yosef). The Gemara cites proofs
for the various views.
3) WHO HAS THE STATUS OF A "SHOMER AVEIDAH"
Why is this discussion cited here in Bava Kama? It belongs in Bava Metzia,
in the chapter of "Elu Metzi'os," where the Gemara discusses the laws of
returning a lost object! The Gemara there (Bava Metzia 29a) indeed quotes
this Machlokes between Rabah and Rav Yosef, but it does not cite any of the
proofs to either side that our Gemara cites. Why was this Sugya placed into
the Gemara here? (PNEI YEHOSHUA)
ANSWER: The PNEI YEHOSHUA explains that the Machlokes between Rabah and Rav
Yosef is relevant to the Halachah of our Mishnah which states that when one
gives an animal to a Shomer, the Shomer is responsible for any damage that
the animal causes. What is the Halachah in a case where a person finds a
lost animal and takes it into his custody, and the animal causes damage?
Will the finder be responsible for the damage that the animal causes?
If the finder is negligent and lets the animal cause damage, then he
certainly is responsible. If, however, the animal is a type of animal that
normally must be guarded with a Shemirah Me'ulah (a Tam according to Rebbi
Yehudah, and a Tam or Mu'ad according to Rebbi Meir), and the finder guards
it with only a Shemirah Pechusah, will he be obligated to pay for the damage
that it causes?
According to Rav Yosef, who holds that the finder has the status of a Shomer
Sachar, he will be obligated to pay for damages, since a Shomer Sachar must
guard an animal with a Shemirah Me'ulah. According to Rabah, who holds that
the finder has the status of a Shomer Chinam, it suffices to guard the
animal with a Shemirah Pechusah, since a Shomer Chinam does not have as
strong of a requirement to guard the animal, as the Gemara says earlier
(45a; see Tosfos 57a, DH Ela).
The Pnei Yehoshua adds that according to the Gemara's conclusion (57a) that
after an animal is lost, even a Shomer Chinam must guard it with a Shemirah
Me'ulah since it has become accustomed to wandering out, even Rabah will
agree that the finder must guard the animal with a Shemirah Me'ulah, and if
he does not, then he will be responsible for any damage that the animal
(Others argue that an animal that has become accustomed to wandering out
must be guarded only with a Shemirah Me'ulah to prevent it from *wandering*,
not to prevent it from *damaging* others. If that were not the case, then
even the owner should have to guard his Mu'ad animals (which normally need
only Shemirah Pechusah, according to Rebbi Yehudah) with a Shemirah Me'ulah
once they wander out once -- as the Pnei Yehoshua himself asks. See BEIS
The OR SAME'ACH (Hilchos Nizkei Mamon 4:4) adds that perhaps the opposite is
true: According to the opinion that Rav Yosef gives a finder the status of a
Shomer Sachar because the Torah obligates him to watch the item, the finder
might be obligated only to prevent the animal from *becoming* damaged like a
Shomer Sachar, but he is *not* obligated to prevent the animal from
*causing* damage like a Shomer Sachar, since the Torah does not obligate him
to prevent the animal from causing damage.
QUESTION: Rabah and Rav Yosef argue whether a Shomer Aveidah is considered a
Shomer Chinam or a Shomer Sachar (see previous Insight). RASHI defines a
Shomer Aveidah as one who brings an object that he found into his home. Why
should the argument between Rabah and Rav Yosef not apply even from the
moment that the person finds the object? Even if he returns the item
directly to the owner and the item is lost or stolen from him on the way,
the Machlokes should still apply!
Later (57a, DH Mai), Rashi again infers from the wording of the Gemara that
the argument between Rabah and Rav Yosef applies to an object that the
finder has brought home. Rashi's words there imply that if the finder did
not yet bring the object home, then even Rabah will agree that the finder
has the status of a Shomer Sachar. Why should that be so?
ANSWER: What is the reason why Rabah does not agree to Rav Yosef that the
finder becomes a Shomer Sachar because he is exempt from giving Tzedakah to
a poor person while he is taking care of the Aveidah? TOSFOS in Bava Metzia
(29a) and Shavuos (44a) explains that Rabah agrees that one is exempt from
giving Tzedakah while caring for the Aveidah, but he does not consider the
finder to be a Shomer Sachar because of this, since it is such an uncommon
benefit; it is not common for the finder to actually benefit in such a
manner. Rav Yosef argues that as long as the finder can possibly benefit in
such a way, he is considered a Shomer Sachar from the moment that he finds
Based on this approach, the RADVAZ (1:519) suggests that perhaps even Rabah
would agree that at the moment that a person is tending to the lost object,
he is indeed considered a Shomer Sachar, since he is definitely benefiting
at that moment by not having to give Tzedakah due to the Mitzvah that he is
involved in by taking care of the Aveidah.
The TOSFOS HA'ROSH writes that not only when a person is caring for the lost
item in his home is he considered Osek b'Mitzvah and is exempt from giving
Tzedakah, but even while he is carrying the Aveidah to his house (or to the
owner's house) he is also exempt from giving Tzedakah, since he is
performing a Mitzvah with the Aveidah at that time.
Perhaps Rashi wrote that the Machlokes between Rabah and Rav Yosef applies
only when the Aveidah is sitting in the finder's house, because if the
finder is carrying the Aveidah to his house or to the loser's house, he is
actually performing a Mitzvah with the Aveidah at the time, and therefore
even Rabah will agree that at that moment he has the status of a Shomer
Sachar, like the Radvaz writes. (M. Kornfeld)