Taking justice into your own hands TB Baba Kama 28

 It’s no secret that my sons and I has been reading comic books for close to four decades. I think you can divide the superheroes into three categories. Since I’m more familiar with the DC universe, my examples will be from there with one exception. The first category is the Boy Scout. Batman calls Superman a Boy Scout because Superman pretty much embodies his moral code to the equal to the Scout’s Law “A Scout is trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean, and reverent.” Which Superman no matter how dark and cynical the DC world tries to be, is all those. Batman falls into the second category, a vigilante. Many members of the police force call him a vigilante. Although Batman works outside the law, he has his own moral code that he never transgresses. Batman rejects the use of deadly force and refuses to allow even his arch enemies like the Joker to die by his hands through inaction on his part. The third category are those superheroes who take justice into their own hands. Although Jason Todd a.k.a. Red Hood was the second Robin, he does not object to mete out justice to those who deserve it. And even better example is the Punisher in the Marvel universe.

 Starting with yesterday’s daf TB Baba Kama 27b and continuing in today’s daf, the Gemara litigates whether one is permitted to take justice into his own hands.

Here is the case study. “There is a certain cistern belonging to two people whose arrangement was to alternate its use so that every day one of them would draw from it in turn. It happened that one of them came and was drawing water on a day that was not his turn. His co-owner said to him: This is my day to draw, not yours. His colleague did not pay attention to him. The person whose turn it was therefore took the handle of a hoe and struck the person who was stealing his water, who then sued for damages.” (Sefaria.org translation)

Rav Naḥman and Rav Yehuda disagree whether a person can take justice into his own hands. “This is as it was stated, that Rav Yehuda says: A person may not take justice into his own hands, whereas Rav Naḥman says: A person may take justice into his own hands.” (Sefaria.org translation)The Gemara limits the disagreement to the case when there’s no immediate loss. “Where there is an imminent loss that will be suffered if the injured party does not take action, everyone agrees that a person may take justice into his own hands. They disagree only when there is no imminent loss that will be suffered. Rav Yehuda says that a person may not take justice into his own hands, because since there is no loss, he should go before the judge to have him enforce the law. Rav Naḥman says that a person may take justice into his own hands. Since he is acting lawfully, as he is clearly in the right, he need not trouble himself to go before the judge to have him enforce the law.” (Sefaria.org translation)

After citing eight different misnayot to litigate whose position is the correct one, the Gemara remains inconclusive. According to halakha, a person may take justice into his own hands. If he sees his stolen object in the thief’s possession, he may take it back even with force. If the thief refuses to return the object, the owner may beat the thief to retrieve his property. However based on some of the case studies in the Gemara, the Rama and the Tur limit the ability of the owner to beat the thief to when there is no other way of retrieving his property. This halakha applies both when there is an immediate loss and when there’s no immediate loss as long as the owner can successfully defend his case later in court. When it comes to matters of monetary issues, the halakha always follows Rav Naḥman. See Shulkhan Arukh, Hashen Mishpat, 412:4.

Scars can represent healing instead of pain. #parashatvayishlakh#devartorah#parashathashavua

Faye touched the scars on her abdomen. She had endured another surgery to remove esophageal-stomach cancer. This time doctors had taken part of her stomach and left a jagged scar that revealed the extent of their work. She told her husband, “Scars represent either the pain of cancer or the start of healing. I choose my scars to be symbols of healing.”

Jacob faced a similar choice after his all-night wrestling match with God. The divine assailant wrenched Jacob’s hip out of socket, so that Jacob was left exhausted and with a noticeable limp. Months later, when Jacob massaged his tender hip, I wonder what he reflected on?

Was he filled with regret for his years of deceit that forced this fateful match? The divine messenger had wrestled the truth out of him, refusing to bless him until Jacob owned up to who he was. He confessed he was Jacob, the “heel grabber” (see Genesis 25:26). He took advantage of his brother’s hunger and traded a stew for the birthright. He tricked his father, Isaac, for the first blessing by dressing up in his brother’s clothes. The divine wrestler said Jacob’s new name would be “Israel, because you have struggled with God and with humans and have overcome” (32:28).

Jacob’s limp represented the death of his old life of deceit and the beginning of his new life. The end of Jacob and the start of Israel. We all carries life’s scars, but aren’t we all the Bnai Yisrael, the children of Israel! When we learn from experience, the scars of our lives can lead us to restoration and like our father Jacob a renewed intimacy with God.

 

 

Do you have to watch where you’re walking in the public domain? TB Baba Kama 27

The Mishna on daf TB Baba Kama 27 teaches “concerning the barrel placed in the public domain: If another person came and stumbled on it and broke it, he is exempt.” (Sefaria.org translation) Don’t you have to watch where you walk in the public domain? Or alternately in the public domain, doesn’t the person have the right away? If somebody puts a vessel in the public domain where it doesn’t belong, the person who accidentally broke it is not liable for damages. That is exactly the issue the Gemara is discussing. “Why is he exempt? Although this happened in the public domain, he should examine the road and then continue walking.” (Sefaria.org translation0

Babylonian amoraim explain the special circumstances of the Mishna when a person is exempt from liability. “Shmuel says: The ruling of the mishna is taught with regard to a case where he broke it in the dark. Therefore, he could not have avoided breaking the barrel by examining the road in front of him. Rabbi Yoḥanan says: The ruling of the mishna is taught with regard to a case where the barrel was placed at the corner of the road, and so the pedestrian could not have seen it, as he rounded the corner, before stumbling on it.” (Sefaria.org translation) In other words, in broad daylight or the sight line is clear, the person walking needs to pay attention where he’s going. If he breaks something in the public domain under these conditions, he is liable for damages.

Eretz Yisrael amoraim disagree with their Babylonian counterparts. “Rabbi Abba said to Rav Ashi that this is what they say in the West, Eretz Yisrael, in the name of Rabbi Ulla, in explanation of the mishna: Even if the barrel is clearly visible, one who stumbles on it is exempt from liability because the typical manner of people is not to examine the roads, as they assume that the road is unobstructed. Therefore, one who breaks an item placed in the road as a result of not watching is not liable to pay restitution.” (Sefaria.org translation) In other words, even in day time or the site line is clear, the person walking and is not paying attention is not liable for the damage of the broken vessel.

A case came before Rava when he obligated the person walking in the public domain to pay for damages. Rav Papa explains that “this incident was at the corner where there was an olive press [de’atzera], where it is known that people put their jugs down while waiting for oil. Consequently, since they were acting with permission, a pedestrian should examine the road and then continue walking.” (Sefaria.org translation)

According to the Shulkhan Arukh, the halakha holds that a person is exempt from liability because people usually don’t pay attention where they walk in the public domain because they have the right away. However if people have permission to put down what they are carrying while waiting in line, the person should have watch where he was walking and is liable for any damages he does. (See Shulkhan Arukh, Khoshen Mishpat, 412:1)

You can always find something to be grateful for #Thanksgiving #devartorah

 God miraculously took care of all the Children of Israel’s needs during their 40 years in the desert. Our Torah describes how the clothes and shoes never wore out and how God Himself sustain them with manna. According to the midrash, manna assumed the taste of whatever the person desired. If he wanted steak for supper, manna tasted like steak; if she wanted fish, it tasted like fish. Nevertheless, our ancestors constantly complained about their lot in life. The Torah records how they griped about the manna. Remembering the fish, cucumbers, melons, leeks, onions, and garlic of Egypt, they whined: “… There is nothing but manna before our eyes.” What ingratitude. They were showered with God’s blessing of a well-balanced diet, yet they were not satisfied. They wanted variety.

These Jews remind me of a farmer was known for his negative attitude. A neighbor stopped by for a visit one day and noticing the man’s wonderful crop said, “You must be extremely happy with this year’s harvest!” “Well, yes, it surely looks like the best I’ve ever had.” The farmer grudgingly continued, “But a bumper crop is awfully hard on the soil.”

Most of us find it easy to complain. Although we are greatly blessed by God, we tend to focus on the negatives rather than the positives of life. As a result, we often murmur against the Lord when we should be praising Him for our countless blessings. We let ourselves be distracted by the few disappointments and deprivations which are inevitable in life. During the Civil War, Abraham Lincoln could still count the country’s blessings and proclaim Thanksgiving as a national holiday despite the destruction of life and property the war engendered. How much more so should we thank God every day that we live in the United States of America, the land of freedom and equal opportunity. Whenever we are tempted to grumble about something, let’s remember the words of the Torah “and when the people complained, it displeased the Lord” (Numbers 11:1) Then every day will be a thanks giving day.

Happy Thanksgiving and Shabbat shalom,

 

Don’t give up #parashattoldot#devartorah#parashathashavua

Do you remember the children’s book The Little Engine That Could? A little railroad engine was employed about a station yard for such work as it was built for, pulling a few cars on and off the switches. One morning a large train asked one large engine after another to carry it up a large hill and down only to be refused with excuses why it can’t. In desperation, the train asked the little switch engine to draw it up the grade and down on the other side. "I think I can", puffed the little locomotive, and put itself in front of the great heavy train. As it went on the little engine kept bravely puffing faster and faster, "I think I can, I think I can, I think I can".

As it neared the top of the grade, which had so discouraged the larger engines, it went more slowly. However, it still kept saying, "I—think—I—can, I—think—I—can". It reached the top by drawing on bravery and then went on down the grade, congratulating itself by saying, "I thought I could, I thought I could".

In this week’s Torah portion Isaac dug anew the wells in wadi of Gerar that the Philistines had stopped up after his father’s death only to have the herdsman of Gerar quarrel with the herdsman of Isaac saying that the water is theirs. So Isaac’s servants dug another well that was also disputed. Once again Isaac moved from there and dug a third well but this time the herdsman of Gerar didn’t quarrel over it. Isaac called this well Rechavot. (By the way, the Technion, Israel’s MIT, is in Rechovot) (Genesis 26:12-22)

Rabbi Zelig Pliskin shares an insight on this episode  from the Chofetz Chayim in his book Growth Through Torah, page 65.

“The Chofetz Chayim  explained that the Torah elaborates on the wells that Yitzchok found to teach us that you should not give up in discouragement when you start something just because you run into difficulties. Do not despair. When Yitzchok dug and did not find water, he kept digging in other places until he finally found what he was seeking. When others quarrel with him and took over his wells, he still did not become discouraged. He continued his digging until he finally found a well with water that he was able to use in peace a called the area Rechavot.

“This, encouraged the Chofetz Chayim, is a practical lesson for all areas of our lives. This applies to spiritual and material matters; to Torah studies and to business. Be persistent when things do not work out at first the way you would wish them to. Especially when beginning to study Torah, do not give up if you find it difficult at first. (Chofetz Chayim  Al HaTorah)”

“The reason many people fail to accomplish something is because they give up too soon.” If you have the determination like the little engine that could and keep trying, eventually you will succeed climbing that mountain and attain your goal.

What’s the difference between a shelamim sacrifice and an adjacent shelamim sacrifice? TB Baba Kama 12-13

I was taught when delivering a sermon I should use clear and simple language. Because our Mishna doesn’t use clear and simple language, dappim TB Baba Kama 12-13, the Gemara wants to know what the other idea Mishna is trying to teach us.

“The mishna teaches: One is liable only with regard to damage caused to property for which, were he to use it for a non-sacred purpose, he would not be liable for the misuse of consecrated property.” (Sefaria.org translation) Why didn’t the Mishna just say that the person is not liable for consecrated property? “The Gemara infers: The property in question does not have the prohibition of misuse of consecrated property, but it is consecrated property, yet one is still liable for causing damage to it.” (Sefaria.org translation)

“Rabbi Yoḥanan said: The mishna is referring to offerings of lesser sanctity (kadshim kalim e.g. a shelamim-peace sacrifice-gg) and is in accordance with the opinion of Rabbi Yosei HaGelili, who says that such offerings, before they are slaughtered, are considered property of their owners, as opposed to property of Heaven. It is only once such an offering is slaughtered that it becomes subject to the halakhot of misuse of consecrated property( me’ela- מְעִילָה).  When someone benefits or take something that was consecrated to the Temple, the person is liable to pay back the principal of the sacrifice, pay a penalty of 25%, and bring it an asham guilt sacrifice -gg) As it is taught in a baraita that concerning one who steals another’s property and takes a false oath denying he has done so, incurring the obligation to bring a guilt-offering, the verse states: “And commits a trespass against the Lord, and deals falsely with his neighbor” (Leviticus 5:21). The verse serves to include a case in which one denies having in his possession offerings of lesser sanctity, which are property of their owners. This is the statement of Rabbi Yosei HaGelili.” (Sefaria.org translation)

The Gemara then distinguishes between a regular shelamim sacrifice and an adjacent shelamim sacrifice. An example of an adjacent shelamim sacrifice would be the bakhor (בְּכוֹר), the firstborn of an animal, which is given to the kohamim as a gift. Even though the bakhor falls under the category of a shelamim sacrifice, is not considered the property of the kohain. The Gemara explains why the bakhor is different from a regular shelamim sacrifice. “Gifts of the priesthood are different from other offerings of lesser sanctity, as when the priests receive their portions, they receive them from the table of the Most High. Rabbi Yosei HaGelili claims that the act of consecration of an animal as an offering of lesser sanctity does not nullify one’s ownership of the animal. The sanctity of a firstborn offering takes effect with its birth, so it may be that it was never owned; rather, it is reasonable that the Torah provided the priest only with the right and the obligation to partake of it after it is sacrificed.” (Sefaria.org translation)

Another example of an adjacent shelamim sacrifice is the animal tithe (מַעֲשֵׂר בְּהֵמָה), every tenth animal of one’s flock that is designated as tithe for those ten animals and is sacrificed as an offering of lesser sanctity. Animal tithes are excluded because ben Azzai holds that an animal tithe offering is not the property of the owner of the flock. It always belonged to the table of the Most High.” (sefaria.org translation) The regular shelamim only belongs to the table of the Most High after it is sacrificed.

 

 

 

 

Is that considered negligence? TB Baba Kama 11

Daf TB Baba Kama 10 goes off on tangents unrelated to damages caused by a person’s property because it strings together disparate statements said by Ulla in the name of Rabbi Elazar. Remember that the Gemara was transmitted orally. To facilitate memorization, the editors connected statements made by the same rabbis even though they were off-topic.

To better understand this little sugiya, we need some background information about guardianship. Therefore types of guardians or bailees. This order of the guardians is in increasing responsibility for the item. The first guardian is the guardian who watches an item for free, שומר חנם. The second is the guardian who is paid to watch an item, שומר שכר. The third guardian is one who actually rents the object, שומר שכיר. The last guardian is a borrower, שואל. The disagreement between Ulla and Rava revolves around the issue of negligence. Is it negligence when guardian transfers the object he is watching to another guardian? Ulla says no and Rava says yes.

“And Ulla says that Rabbi Elazar says: In the case of a bailee who conveyed a deposit that was entrusted to him to another bailee, the first bailee is exempt for any occurrence for which he would have been exempt had he kept the deposit with him. The Gemara adds: And it is not necessary to state this in the case of an unpaid bailee (שומר חנם) who conveyed a deposit to a paid bailee (שומר שכר), thereby increasing the level of its safeguarding, since the paid bailee has a greater level of accountability than an unpaid bailee. Rather, this is the halakha even in a case of a paid bailee (שומר שכר) who conveyed a deposit to an unpaid bailee (שומר חנם), thereby decreasing the level of its safeguarding. In this case, the first bailee is exempt for any occurrence for which he would have been exempt had he kept the deposit with him, because he conveyed it to a mentally competent person and thereby fulfilled his responsibility to ensure the deposit is safeguarded.” (Sefaria.org translation) The novelty of this approach is that the transfer of responsibility from one guardian to another is not considered within the parameters of negligence. Consequently, the original guardian is only liable for restitution at his original level of responsibility.

“Rava said: With regard to a bailee who conveyed a deposit to another bailee, the first bailee becomes liable to pay for any loss to the item, even for mishaps for which he would not have been liable had he kept the deposit with him. The Gemara adds: And it is not necessary to state this in a case of a paid bailee who conveyed a deposit to an unpaid bailee, thereby decreasing the level of its safeguarding. Rather, this is the halakha even in the case of an unpaid bailee who conveyed a deposit to a paid bailee, thereby increasing the level of its safeguarding; he is liable.

“The reason he is liable is that the owner of the deposit can say to him: You are credible to me with regard to taking an oath, but this other bailee, to whom you conveyed my item, is not credible to me with regard to taking an oath. If an occurrence for which a bailee does not carry liability occurs, damaging the deposit, in order to release himself from an obligation to pay the bailee must take an oath to the item’s owner that none of the types of occurrences for which he bears liability occurred. Rava rules that the owner is required to accept an oath only from the bailee with whom he entrusted his item, but not from anyone else. Accordingly, since the first bailee was not present when the event occurred, he is unable to attest to what happened, and even if the second bailee takes an oath to that effect, the owner is not expected to accept his oath. Consequently, the first bailee bears full liability for any loss.” (Sefaria.org translation) Another possible reason the original guardian is liable for all losses and damages is that the owner can say that he did not want his object entrusted to anybody else but him.

There is a second reason that buttresses the end result. The original guardian is still liable for everything even when the second guardian is more believable than the original guardian. Alternately, there are two witnesses available who will testify; consequently, an oath is not necessary. The owner of the object still can claim that he doesn’t want anybody but the original guardian to watch it. Transferring the object to another guardian is an act of negligence on the part of the original guardian.

Both Rambam and the Shulkhan Arukh poskin according Rava.

TB Baba Kama 9-10 Major differences between the damages

Although there are four major categories of damages, there are significant differences between them. TB Baba Kama 9b-10a delineates the differences between the four types of damages.

Ҥ The Sages taught: There is a stringency that applies to the category of Ox as opposed to the category of Pit, and conversely, there is a stringency that applies to Pit as opposed to Ox.

"The baraita elucidates: The stringency that applies to Ox as opposed to Pit is that if the ox kills a Jew, the owner is liable to pay a ransom to the victim’s heirs. (Instead of a death sentence because his ox killed a Jew, the Torah allows him to pay a ransom for his life-gg) And for killing a slave the owner of the ox is liable to pay thirty sela to the slave’s master. Furthermore, in such a case, once the court hears the evidence and the verdict of the ox is complete and the court rules that the ox must be killed, it is prohibited to derive any benefit from the ox. And from then, it is considered that the typical manner of the ox is to proceed and cause damage. All of this is not so in the case of a pit that caused damage. And the stringency, i.e., the reason to be stringent, that applies to Pit as opposed to Ox is that with regard to the primary category of Pit, its initial formation, e.g., its digging, is done in a manner that can result in damage, and the one responsible for it is considered forewarned from its inception. This is not so with regard to Ox.

“There is a stringency that applies to the category of Ox as opposed to Fire, and conversely, there is a stringency that applies to Fire as opposed to Ox.

The baraita elucidates: The stringency that applies to the category of Ox as opposed to the category of Fire is that if an ox kills a Jew the owner is liable to pay a ransom, and for killing a slave the owner is liable to pay thirty sela. Furthermore, in such a case, once the court hears the evidence and the verdict of the ox is complete and the court rules that the ox must be killed, it is prohibited to derive any benefit from the ox. And if one transfers his ox to the care of a deaf-mute, an imbecile, or a minor, and it causes damage, he is liable. All of this is not so with regard to a fire. And the stringency that applies to Fire as opposed to Ox is that the one responsible for the fire is considered forewarned from its inception, which is not so with regard to an ox.

There is a stringency that applies to the category of Fire as opposed to the category of Pit, and conversely, there is a stringency that applies to Pit as opposed to Fire.

“The baraita elucidates: The stringency that applies to the category of Pit as opposed to the category of Fire is that its initial formation, e.g., its digging, is done in a manner that can result in damage, and if one transfers it to the care of a deaf-mute, an imbecile, or a minor and it causes damage, one is liable. This is not so with regard to a fire. The stringency that applies to Fire as opposed to Pit is that the typical manner of a fire is to proceed and cause damage. And the one responsible for it is considered forewarned with regard to its consuming both something that is fitting for it and something that is not fitting for it, i.e., both flammable and non-flammable items. This is not so with regard to a pit.” (Sefaria.org translation)

These are not the only differences between the different kinds of damages. Both the rabbis and Rabbi Yehuda suggest other differences. See the rest of the daf what other differences are there and why they weren’t included in the above baraita.

Buyer protection plan TB Baba Kama 8

 Here is some background information we need to know. A person whose property is damaged collects from the superior quality of land (עִידִּית). A creditor collects for the dead owed from the middle quality of land (בְּבֵינוֹנִית). A woman collects from the amount stipulated in the  ketubah from the lowest quality land (זִיבּוּרִית). There is a possibility that the creditor may not be able to collect the debt from the quality of land due him.

“The Sages taught in the Tosefta (Ketubot 12:3):..If he sold his plots of land one after the other, all the creditors collect from the last buyer, regardless of the quality of the land he purchased. If that buyer does not have sufficient land purchased from the debtor to pay all the debts, the creditors take the land he has and collect the remaining sums from the one who purchased land before him, and if he also does not have sufficient land, they collect the rest from the one before the one before him, i.e., the first buyer. The Sages instituted that creditors may not collect from land that a debtor sold, even though it is technically still liened to them, as long as the debtor still has sufficient means with which to repay the debt (see Gittin 48b). Accordingly, after the sale of the first plot of land, the creditors’ rights to collect are restricted to the land that remains in the possession of the debtor, and consequently they gain a lien on it, irrespective of its quality. Therefore, even if that land is subsequently sold, their rights to collect are restricted to that land, and only if the value of that land is insufficient to cover the cost of the debt may they utilize the original liens they had on the plots of land that were sold first.” (Sefaia.org translation)

There is a case when a person may buy one after the other three lots a land that has liens on it, and would be obligated to pay every type of creditor from the superior quality of land. “This is a case where the individual buyer purchased the superior-quality land last. Accordingly, the buyer is satisfied with allowing each creditor to collect from the land that was previously liened to him, rather than having them each collect from the superior-quality land. And so says Rav Sheshet: It is a case where the individual buyer purchased the superior-quality land last. The Gemara asks: If that is so, let them all come and collect from the superior-quality land, as their rights to collect should be restricted to it, since it was purchased last.” (Sefaria.org translation)

Having all the creditors collect from the superior quality land is unfair. The purchaser would lose when a creditor holding a debt and/or a woman collecting her ketubah comes forward collecting what is owed them because they would collect from the superior quality of land instead of the quality of land that is due them.

The Gemara shares a solution the purchaser could say to protect his superior quality lot. “The Gemara answers: Because he can say the following threat to them: If you are silent and do not insist on collecting from the superior-quality land, and take the land of a quality that is due to you according to your standard legal rights, as in a case where you collect directly from the debtor, i.e., the injured party will collect from the superior-quality land, the creditor from the intermediate-quality land, and the woman will collect her marriage contract from the inferior-quality land, then take that land and I will allow you to do so. But if not, and you insist on taking the superior-quality land that I purchased last, then I will return the bill of sale of the inferior-quality land to its prior owner, i.e., the debtor, and you will all be forced to collect from the inferior-quality land, because whenever the debtor has land in his possession you are able to collect the debts only from him.” (Sefaria.org translation)

The rabbis’ buyer protection program is not obligatory. “The Gemara suggests another explanation of the Tosefta: Rather, not all the creditors collect from the superior-quality land, which was the last plot of land purchased from the debtor, because the buyer can say to them: What is the reason that the Sages said one is not paid from liened property, i.e., property liened to a creditor that has been sold by the debtor, whenever there is unsold property still in the debtor’s possession? It is due to an ordinance created solely for my benefit, as I should not be expected to pay from the land I purchased when the debtor is still able to pay. If that ordinance were to be in effect in this case, all of their liens would be in effect with regard to the superior-quality land, as that was purchased last. In this case I do not find this ordinance satisfactory to me, and I would prefer for the lien of each creditor to remain in effect with regard to the land it had been on initially, and I will give each of you that land.” (Sefaria.org translation)

 

 

Love and marriage #parashatChayaiSarah#parashathashavua#devartorah

A man went to his rabbi for counseling. In his hands were pages of complaints against his wife. After hours of uninterrupted listening, the rabbi couldn’t help but ask, “If she is that bad, why did you marry her?” Immediately the man shot back, “She wasn’t like this at first!” The rabbi, unable to hold back his thoughts, asked, “So, are you saying that she is like this because she’s been married to you?”

Whether or not this story is true, it does suggest an important lesson to be learned. At times, feelings toward a spouse may grow cold. But love is much more than feelings—it’s a commitment.

Although most people choose to marry only because of love, in some sectors of our people, couples still get married through matchmaking. In this week’s parasha, Chayai Sarah, for Isaac and Rebekah, love came after marriage. It says in chapter 24 that Isaac married Rebekah and then he loved her (v.67).

Love is about our willingness to do what is good for another.  The Talmud teaches “A man must always be exceedingly careful to show honor to his wife” (Beva Mezia 59a and “a man should love his wife as himself and honor her more than himself.” (Yevamot 62b) Although the Talmud frames the relationship from the husband’s perspective, in today’s egalitarian world I would say that all partners in a marriage need to follow the Talmud’s advice.

By embracing and nurturing the promises made underneath the huppah, the marriage canopy and living an intentional committed marriage, all who know the couple will call them truly blessed.

 

Solving a contradiction TB Baba Kama 7

Abaye raises a contradiction between two biblical verses concerning in which form restitution should be paid to Rava. “Abaye raises a contradiction and addresses it to Rava: It is written: “The best of his field and of the best of his vineyard he shall pay” (Exodus 22:4), which indicates that from his best-quality land, yes, he shall pay, but from something else, no, he shall not pay.

“But isn’t it taught in a baraita: The verse states: “And if a man shall open a pit, or if a man shall dig a pit and not cover it, and an ox or a donkey fall therein, the owner of the pit shall pay; he shall recompense money to its owners” (Exodus 21:33–34)? Since the verse states: “The owner of the pit shall pay,” the additional term “he shall recompense” is superfluous. It therefore serves to include any item worth money, and even bran, a relatively inferior commodity, as valid forms of restitution.” (Sefaria.org translation)

The Gemara tries to resolve this contradiction with four different solutions before settling on the fifth and last as the correct explanation. The first differentiates between the state of mind of the person whether he is willing to pay the damages of his own free will or the person who has to pay against his will.

The second solution differentiates when the damages will be paid. The same parcel of land is worth more in  Nisan than in Tishre because in Nissan the whole planting and growing  season is ahead of the farmer while in Tishre the growing season is over because the harvest is brought in.  If the person who suffered the damage is willing to accept a lower quality of land where he would accrue more land because it is worth less than the best quality land (עִידִּית) that is due him, he must also accept what the land is worth during high season when is worth more which means he get less land.

The third and fourth solutions are similar. The third compares it to a creditor who is entitled to the middle quality of land (בְּבֵינוֹנִית) and the fourth compares it the women’s legal right to collect the amount stipulated in the  ketubah from the lowest quality land (זִיבּוּרִית). The explanations go very much like the one above in the second solution.

The final solution is probably the easiest solution to solve the seemingly contradiction between the two verses. One verse deals with movable items and the other one deals with land.

“when Rav Pappa and Rav Huna, son of Rav Yehoshua, came from Rav’s academy, they explained it as follows: With regard to payment, all items are classified as property of the best quality, as, if an item cannot be sold here, it can be sold in another city. Since movable items are easily liquidated, they are always considered an acceptable form of payment. This is with the exception of land, which is not always easily sold. Therefore, the halakha is that the one liable for the damage must give the injured party payment from his best-quality land, which is easier to sell. This is in order to ensure the possibility that a buyer will jump at the opportunity to purchase it, thereby providing the injured party with the possibility of liquidating it. This resolves the contradiction. The phrase “of the best of his field” indicates that if payment is made with land it must be with superior-quality land, and the term “he shall recompense” indicates that if payment is made from movable property, anything worth money may be used.” (Sefaria.org translation)

  

Hybrid categories of damages TB Baba Kama 6

We all know there are four major categories of damages (Ox; Pit; Maveh; and the Fire) and that if a person causes damages, he is liable. Sometimes the damage does not exactly fall within the parameters of one of the categories. Consequently, for the person to be liable a hybrid damage, meaning the combination of two categories, must be created. Daf 6 TB Baba Kama provides four examples where a hybrid damage is needed to explain why the person is liable.

The first case describes a person putting a knife, a stone, or a heavy load on the roof and the wind blows it off the roof onto the ground. If one of those things falls on a person, the category of damage has to be fire since “another force is involved with it in causing damage, as it is the wind that causes the fire to spread and cause damage; and the entity propelled by the wind is your property, and responsibility for its safeguarding, to prevent it from causing damage, is incumbent upon you. In these cases, too, another force is involved with them in causing damage; and the objects are your property, and responsibility for their safeguarding, to prevent them from causing damage, is incumbent upon you.” (Sefaria.org translation) But when the knife, stone, or heavy load lands on the ground and remains there and after a while it damages a person, the category now is a pit. “What is notable about the primary category of Pit? It is notable in that there is no other force involved with it in causing the damage. Will you say the same with regard to these cases, where there is another force involved with it in causing the damage, i.e., the wind that propelled them from the roof to rest on the ground?” (Sefaia.org translation) By creating a hybrid damage consisting of both the pit and fire, we’ve successfully explained he why the person is liable for the damage.

The second case concerns a movable pit. Rashi explains the case to be a stone was placed where it did no damage, but it was kicked by another person or animal to a place where it did caused damage. We need to put the ox category and the pit categories together to create liability. The case of the stone doesn’t exactly fit the category of the pit because a pit requires a person to cause the damage e.g. a person placing a stone in the middle of the street. Consequently. We need to include the ox category create a hybrid category because like the ox the stone moved from one place to another. Both categories are needed.

The third case concerns flushing gutters during the rainy season. People are permitted to flush their gutters of water or sewage during the rainy season because the streets are already a mess and are forbidden to flush them during the dry season for all the obvious reasons. We also know that the person is still liable for damages caused by opening up his gutters during the rainy season. Although the stationary water or sewage does not neatly fall into the pit category because it was done with permission. Consequently we need to include the ox category to create a hybrid category because by opening up the gutters the water or sewage moved. Both categories are needed.

The fourth case concerns a fallen tree or wall from a private domain onto the public domain. The owner of the tree or wall is given a grace period to remove the tree or the wall from the public domain. Obviously after the grace period is over and he fails to pick up the tree or the wall, he is liable. Nevertheless, he is still liable for damages caused during that grace period. A hybrid category containing both the ox and the pit are needed to explain his liability during the grace period. Both categories are needed.

Read the daf for a fuller explanation how each category of damages is insufficient by itself to engender liability.

What’s unique about each of the four categories of damages? TB Baba Kama 5

The amoraim believed that Rabbi Yehuda HaNasi aka Rebbe, the editor the Mishnah, chose his words carefully. With some exceptions, they believed that the Mishnah contains no extraneous word. Every word is pregnant with meaning and purpose. Citing all four categories of damages seem superfluous. They wonder why Rebbe needed four different categories of damages in the very first Mishnah of our massekhet. Couldn’t we learn the other three categories from one of them by analogy? If that wasn’t possible, couldn’t we create a binyan av, a principle derived from one Biblical text or from two Biblical texts, out of two them in order to learn the other two?

The Gemara comes to the conclusion that anyone of the other three categories of damages coupled with the damage of a pit could by an analogy learn the other two. The Gemara answers the question if this is the case what was unique about each one of these categories that Rebbe wanted to teach.

“Eating (שֵׁן) and Trampling (רֶגֶל) are written explicitly in order to exempt from liability those whose animals perform the actions in these categories in a public domain.

Pit (בּוֹר) is written explicitly in order to exempt one from liability for damage to vessels caused when they fall into a pit. The Gemara adds: And according to the opinion of Rabbi Yehuda, who deems one liable even for damage to vessels caused when they fall into a pit, Pit was written in order to exempt one from liability for the death of a person who was killed by falling into a pit. Rabbi Yehuda concedes that the possessor of the pit is exempt because the person who ultimately fell into the pit was capable of avoiding it.

Man (אָדָם) is written explicitly in order to render him liable for four additional types of indemnity, beyond the payment of damages for the diminution in value caused when one injures a person.

Fire (אֵשׁ) is written explicitly in order to exempt one from liability for damage caused to a concealed object, e.g., one hidden by grain, that was consumed by fire. The Gemara asks: And according to Rabbi Yehuda, who deems one liable even for damage done to a concealed object damaged by fire, to add what halakha does the Torah mention the category of Fire explicitly?

The Gemara answers: It serves to add cases where the fire scorched another’s plowed field and cases in which it singed his stones. Even though the damaged object remains intact and is not consumed by the fire, one is still liable to pay for the damage caused.” (Sefaria.org translation)

What is the organizing principle of the first Mishna? TB Baba Kama 2-4

Two days ago this past Shabbat, we began massekhet Baba Kama. It is the first massekhet in Seder Nezikin. Originally this massekhet was called massekhet Nezekin, the tractate of damages. Because it was extremely long, the rabbis divided it into three separate massekhtot, Baba Kama (the First Gate), Baba Metzia (the Middle Gate), and Baba Batra (the Last Gate).

The first mishna lists for primary categories of damages. “There are four primary categories of damage: The category of Ox (הַשּׁוֹר); and the category of Pit (הַבּוֹר); and the category of Maveh (הַמַּבְעֶה), and the category of Fire (הַהֶבְעֵר).” Of the four terms, the third, Maveh (הַמַּבְעֶה) is the most uncommon and unusual. Perhaps the reason why the Mishnah uses such an unusual and uncommon word was stylistic. In Hebrew ox-shor rhymes with pit -bor and  maveh kinda sounds like hevair making the mishna easier to memorize.

Because Maveh is an uncommon and unusual word, Rav and Shmuel disagree what it means and each has a different organizing principle of the mishna. “Shmuel, who says: Maveh, this is the category of Eating (שֵׁן) (the animal grazes on another person’s property)… Rav, says: Maveh, this is the primary category of Man, which includes damage caused by a person, not by his property or animal.”

Property damage is Shmuel’s organizing principle, that is, my property damages your property. My ox, my pit, and my fire cause damages to your property. He divides the ox into two major categories. They are significantly different from each other. The damages of an ox e.g goring is unusual and the ox does not derive any benefit from this damage. The damages of an ox eating is quite common and either the ox drives benefit from the food it eats or the owner of the ox derives benefit for he saves money by not having to feed his ox.

Four different causes of damages is Rav’s organizing principle. Obviously an ox is an animal that causes damages. A human being is the next category and is different from an animal for a human being is always forewarned and liable for his actions. A pit is an inanimate object which does not moves one place to another. Although fire is also an inanimate object, an outside force of the wind is needed to blow the sparks to another person’s field to cause the damage. In other words unlike the pit, the fire spreads. 

What’s a doctor doing on this list of occupations to avoid? TB Kiddushin 82

With today’s daf TB Kiddushin 82 we not only finish our massekhet, but also Seder Nashim. Today’s daf discusses which occupations men should avoid. Occupations like a peddler where men come into regular contact with women should be avoided because the temptation to engage in illicit sex is great. Other occupations do not have a good reputation because the temptation to sin is great. “Abba Guryan of Tzadyan says in the name of Abba Gurya: A person may not teach his son the trades of a donkey driver, a camel driver, a pot maker, a sailor, a shepherd, or a storekeeper. ” (Sefaria.org translation) According to Rashi stealing or thievery is commonplace in these occupations. For example, a shepherd will graze his sheep on other peoples’ property. A shopkeeper is tempted to gouge the customer by overcharging him.

Can you imagine a time when Jewish parents didn’t encourage their children to enter the medical profession? Until modern medicine, doctors did not have a very good reputation because they did not often have positive outcomes for their patients. Ambrose Bierce defined a doctor as a person you set your hopes on when you’re ill and your dogs on when you’re well in his book The Devil’s Dictionary. The sages in the Talmud also didn’t hold doctors in high esteem when they said, “The best of doctors is to Gehenna (Hell-gg)”(Sefaria.org translation)

This statement about doctors has been explained in many different ways. Rashi gives many different explanations. The doctor doesn’t fear the sick, feeds him inappropriate food, isn’t humble before God, sometimes he kills the patient, and finally he withholds treatment to a poor person who cannot afford his fee. Rashi’s Bet Midrash explains that sometimes the doctor will accidentally give the patient the wrong medication and kill him as well as being haughty. The Meiri writes that sometimes the doctor will prematurely despair of treating the patient and causes his death; consequently, he won’t try enough to treat him successfully. He won’t acknowledge the nature of the illness and pretends he knows. The Maharsha highlights the word “best” to say that a good doctor often has too high of opinion of himself and won’t consult with experts greater than him. Why does he inherit  Gehenna? Rabbi Akiva Eiger explained that the doctors good attributes will lead him astray. Sometimes a doctor will have compassion for his patient and not prescribe the necessary but painful procedure. Alternately he speaks the truth and reveals to the patient the seriousness of his position and is honest by telling the patient that he has no hope of recovery.

How times have changed! We are so lucky to live in an era with so many great breakthroughs in modern medicine. And everybody knows today that Jewish doctors are renown as some the best doctors in the world.

Tomorrow we begin Baba Kamma in Seder Nezikin!

The antidote of self-indulgence #parashatvayera#devartorah#parashathashavua

An upscale London department store launched a new gift card with the slogan, “The Gift of Self-Indulgence.” Throughout the store, signs, slogans, and even nametags called attention to the cards. According to one employee, sales of the gift cards during the first weeks of the promotion had been very strong, far exceeding company expectations. Generosity may prompt a person to give a luxurious gift to someone special, but too often we find it easier to purchase what we want for ourselves.

In this week’s Torah portion, Vayera, God said, “The outrage of Sodom and Gomorrah is so great and their sin so grave! I will go down to see whether they have acted altogether according to the outcry that has reached me.” (18:20) The prophet Ezekiel sheds light on an ancient city whose people suffered God’s judgment, in part, because they embraced a self-indulgent lifestyle. “This was the iniquity of your sister Sodom: She and her daughter had pride, fullness of food, and abundance of idleness; neither did she strengthen the hand of the poor and needy. And they were haughty and committed abomination before Me; therefore I took them away as I saw fit” (Ezek. 16:49-50).

Historically, the Lord has dealt harshly with our ancestors who became arrogant, overfed, and unconcerned (v.49). The antidote to the poison of self-indulgence is the desire to please God and serve others, not ourselves. We have the opportunity to support Israel in her time of need as well as the opportunity to help people in our own country. There are so many worthy causes. Find one that touches your heart to move you to serve others.

Self-indulgence is a gift we don’t need.

 

 

 

When I’m careful about secluding myself with women TB Kiddushin 81

For us mortals the yetzer har’a, the evil inclination, is strong and sometimes hard to overcome. Today’s daf TB Kiddushin 81 provides many stories of great rabbis who nearly succumbed to temptation. Here are just two examples

“The Gemara relates: Rabbi Meir would ridicule transgressors by saying it is easy to avoid temptation. One day, Satan appeared to him as a woman standing on the other side of the river. Since there was no ferry to cross the river, he took hold of a rope bridge and crossed the river. When he reached halfway across the rope bridge, the evil inclination left him and said to him: Were it not for the fact that they proclaim about you in heaven: Be careful with regard to Rabbi Meir and his Torah, I would have made your blood like two ma’a, i.e., completely worthless, since you would have fallen completely from your spiritual level.

“Rabbi Akiva would likewise ridicule transgressors. One day, Satan appeared to him as a woman at the top of a palm tree. Rabbi Akiva grabbed hold of the palm tree and began climbing. When he was halfway up the palm tree, the evil inclination left him and said to him: Were it not for the fact that they proclaim about you in heaven: Be careful with regard to Rabbi Akiva and his Torah, I would have made your blood like two ma’a.” (Sefaria.org translation)

I think this fear of the yetzer har’a motivated the rabbis to forbid seclusion with women who are not their wives. Nevertheless, this prohibition was not a blanket prohibition.

“The mishna teaches: But one woman may be secluded with two men. Rav Yehuda says that Rav says: They taught this halakha only with regard to men of fit morals, but with regard to those steeped in sexual immorality, she may not be secluded even with ten men…Rabba says: If a woman’s husband is in town, there is no concern due to her being secluded with a man. People are afraid to sin with her, since they cannot be sure when her husband will return. Rav Yosef says: If there is an open entrance to the public domain there is no concern due to being secluded.” (Sefaria.org translation)

There is one area in the rabbinate where I take seclusion with a woman and a student cautiously. Just as much as I want to protect the woman and the student from abuse, I also want to protect myself from false accusations. Consequently, if I’m counseling a woman or tutoring a student, I make sure that my door of my office or classroom is wide open so that anybody passing by can see that nothing inappropriately is happening. Sometimes I will even have my secretary interrupt the session just to be a witness that I innocent of all potential false accusations.

Men and Women alone TB Kidushin 80

We are quickly coming to the conclusion of massekhet Keddushin. For some unknown reason to me, the Gemara appends two topics unrelated to kiddushin at the end of our massekhet. Today’s daf TB Kiddushin 80 deals with the laws prohibiting men and women other than married to each other from being together (yikhud-יִחוּד). Although the ultra-Orthodox and a former vice president refrain from being alone with women other than their wives, for us moderns these laws seem archaic and not applicable. We understand this sugiyah, I turn to my friend, colleague, and teacher Judith Hauptman to explicate our daf. She writes:

The key set of statements on the topic of relations between the sexes appears in chapter 4 of Tractate Kiddushin. After dealing with lineage and with appropriate and inappropriate marital unions, the Mishnah moves on to another topic altogether, relationships between men and women who are not married to each other.

A man may not be alone with two women [neither of whom is married to him], but a woman may be alone with two men [neither of whom is married to her].
R. Simon says: A man may even be alone with two women, as long as his wife is with him, and he may sleep with them at an inn, because his wife watches over him [and will not allow him to engage either of the two women who are not married to him in sexual relations].

He [i.e., any male] may be alone with his mother and his daughter and lie in bed with them in physical contact. Once they grow up [the boy who lies in bed with his mother or the girl who lies in bed with her father], she must sleep in her garment [כסותה] and he in his [but they may still lie in the same bed]. (M Kiddushin 4:12)

The first part of the mishnah states the well-known rule that men and women may not be alone together, but it distinguishes between prohibiting one man from being alone with several women and permitting one woman to be alone with several men. If we read this part of the mishnah independently of its context, at least two reasons for the distinction come to mind: Either men need to be protected from being seduced by women, or women need to be protected from being seduced by men. In order to find out which of these explanations is right, we need to read these rules in the context of those that follow.

The second clause of the mishnah, about relations between family members, makes the assumption that a father is not aroused sexually by sleeping naked in the same bed as his young daughter, with their bodies touching, that a young boy is not aroused by sleeping together with his mother, nor, we may assume, is a mother aroused by her young son. That is, immature bodies do not bring about sexual arousal in others or experience it themselves. But once a man matures physically, he will experience involuntary sexual arousal if he is in close physical contact with either his mother or a physically mature daughter. Therefore, although they may still sleep in the same bed, they may not do so naked, but each wrapped in his or her own garment.

This second part of the mishnah sheds light on the first. In this second case, the father, mother, son, or daughter is not intent on enticing anyone to engage in a sexual act. The mishnah is dealing with a situation, in this case a family bed, in which a man will, without intending to, find himself sexually aroused by sleeping in bodily contact with a naked woman, even his own mother or daughter. The mishnah’s law offers advice on how to avoid such arousal: Have each of them wrap themselves in his or her own blanket-like garment.

It follows that the first part of the mishnah, men and women finding themselves alone with each other, is also describing a situation in which men are not actively trying to entice women, nor are women actively trying to entice men. Even so, men will find themselves aroused sexually simply by being secluded with women. To guard a man from interacting sexually with an unattended woman, a likely outcome of their being alone together, the mishnah recommends that he make sure another man or else his own wife is present. The juxtaposition of these two sections within one mishnah makes it very unlikely that in the first part women are actively trying to seduce men whereas in the second men are trying to contend with involuntary sexual arousal. Since, in addition, the second part of the mishnah uses the same key term as the first part—“to be alone with” [להתיחד עם]—they constitute one literary unit on the topic of seclusion, involuntary sexual arousal and its routine consequence, illicit sexual activity.

Note that this mishnah is written with a man’s concerns in view. It is he who will find himself unable to resist sexual temptation when in the presence of an unattended woman or women. For the mishnah, sexual arousal in these circumstances is natural, uncomplicated, involuntary, and perceived of as bad only if it leads a man into sexual transgression. To prevent him from engaging in a sexual act when alone with a woman, the mishnah forbids a man from allowing himself to be found in such a situation.

The reason that two men may be alone with one woman but two women may not be alone with one man has to do with a man’s controlling his instincts: In both cases a female presence excites a man, but in the first instance, the presence of someone else like himself will inhibit him from pursuing gratification, whereas in the second, in the presence of women only, he will not be embarrassed to carry out his sexual design. https://www.sefaria.org/Rereading_the_Rabbis%3B_A_Woman's_Voice%2C_2_Relations_Between_the_Sexes.9-16?lang=bi