Tuesday, August 16, 2022

The Jewish approach to gun safety laws TB Ketubot 41

With today’s daf TB Ketubot 41 we finish the third chapter of our massekhet. When it comes to damages, the Gemara delineates two kinds of payments. The first is mammon (מָמוֹן), compensatory damages. The second payment is a kenas (קְנָס), a fine. A fine can only be levied by a court when two witnesses testify against the defendant. When there are no witnesses and the defendant admits to the crime, he has to pay the compensatory damages, but not the fine. After citing some case law, the Mishnah provides a general principle. “This is the principle: Anyone who pays more than what he damaged, the payments are fines and therefore he does not pay based on his own admission. He pays only based on the testimony of others.” (Sefaria.org translation)

Before understanding the disagreement between Rav Pappa and Rav Huna, son of Rav Yehoshua, we need some background information. A standard ox (shor tam-שׁוֹר תָּם) has no history of causing any damages. If this standard ox gores somebody else’s ox, the owner only has to pay half the damages (hatzi hanezek- חָצִי הַנֶזק) If this ox gores three times, it becomes a forewarned ox (shor mu’ad-שׁוֹר מוּעָד). Since the owner of a forewarned ox should have guarded this animal from goring, he is obligated to pay full damages. When it comes to a standard ox, is hatzi hanezek considered compensatory damages or is it a fine?

Rav Pappa said: Half the damage is considered a payment of money (mammon, compensatory damages-gg), as he maintains: Standard oxen do not exist in the presumptive status of safety, and therefore are likely to cause damage. And by right, the owner should pay the entire damage caused by his animal, and it is the Merciful One that has compassion on him, as his ox is not yet forewarned until it has gored a person or an animal three times. Fundamentally, the payment is for damage that the animal caused. Rav Huna, son of Rav Yehoshua, said that half the damage is payment of a fine, as he maintains: Standard oxen exist in the presumptive status of safety, and are not dangerous. And by right, the owner should not pay at all, as the ox goring could not have been anticipated, and therefore the owner bears no responsibility. And it is the Merciful One that penalized him so that he would guard his ox. The sum that he pays is a fine.” (Sefaria.org translation)

Despite all the mishnayot the Gemara brings to litigate this disagreement proves that Rav Pappa’s position is the sounder of the two, the ultimate conclusion is that the halakha is according to Rav Huna, son of Rav Yehoshua. Hatzi nezek is a fine.

The chapter ends with a statement which supports the Jewish view of gun safety laws. “Rabbi Natan says: From where is it derived that a person may not raise a vicious dog[1] in his house, and may not place an unsteady ladder in his house? It is as it is stated: “And you shall make a parapet for your roof that you shall not place blood in your house” (Deuteronomy 22:8). It is prohibited to leave a potentially dangerous object in one’s house, and one who refuses to remove it is excommunicated.” (Sefaria.org translation)

There are too many cases where loaded guns were in easy access of children. Children playing around with these guns shoot and kill their playmates.[2] As many as 1.7 million American children live in homes with an unlocked, loaded gun, according to the Brady Campaign to Prevent Gun Violence. (https://www.thejournal.ie/toddlers-shot-michigan-3621108-Sep2017/) Jewish law would dictate these adults must keep these guns away from their children and children visiting their homes. The guns should be kept in a locked box. Guns and ammunition should be stored separately.by doing so we will fulfill the commandment “you shall not place blood in your house.”

[1] A dog (or a cat) who causes unusual damage only has to pay half damages, a fine. Today’s Gemara gives the example of a dog strangled and ate a sheep.

 https://abcnews.go.com/US/year-shot-playmate-critical-condition/story?id=18913811; https://blog.timesunion.com/crime/boy-will-face-family-court-charge-over-death-of-playmate/6276/; https://blog.timesunion.com/crime/boy-will-face-family-court-charge-over-death-of-playmate/6276/

Monday, August 15, 2022

Who is Rabbi Elazar ben Shammua? TB Ketubot 40

 The Hebrew word for a female orphan is yetoma (יְתוֹמָה). To prove that Rabbi Elazar’s position is the same as his teacher Rabbi Akiva, the Gemara quotes the Mishnah on today’s daf TB Ketubot 40 and explains gives the word yetoma a novel interpretation.

And from where do we know that Rabbi Elazar’s opinion corresponds to the opinion of his teacher? From the fact that the mishna teaches with regard to an orphan that Rabbi Elazar says: One who rapes her is obligated to pay the fine and one who seduces her is exempt from payment.

“The Gemara asks: An orphan? That is obvious, as she has no father and is not subject to the authority of anyone else. Clearly the seducer is exempt from payment because she was complicit. Rather, this is what the mishna is teaching us: That the legal status of a young woman who was betrothed and divorced, even if her father is alive, is like that of an orphan: Just as with regard to an orphan, payment of the fine is to her, so too, with regard to a young woman who was betrothed and divorced, payment of the fine is to her.” (Sefaria.org translation). Once a young woman is betrothed and is either widowed or divorced, she is no longer under her father’s jurisdiction and is just like an orphan who has no father. That’s why the fine goes to her now instead of her father.

After declaring that the halakha is according to Rabbi Elazar, Rav says “Rav would exclaim about Rabbi Elazar: He is the happiest of the Sages, as he held that the halakha was ruled in accordance with his opinion in many instances.” (Sefaria.org translation)

Who is this Rabbi Elazar? Rashi identifies him as Rabbi Elazar ben Shammua. Rabbi Akiva had five outstanding students Rabbi Meir, Rabbi Yehuda, Rabbi Yosi, Rabbi Shimon, and Rabbi Elazar ben Shammua. “Eleazar ben Shammua was a student of Rabbi Akiva,[4] but was not ordained by him due to the Hadrianic persecution. After Akiva's death, however, R. Judah ben Baba ordained Eleazar, together with Rabbi MeirJose ben HalaftaJudah bar Illai, and Simon bar Yoḥai, at a secluded spot between Usha and Shefar'am. The ordainer was detected in the act and brutally slain, but the ordained escaped, and eventually became the custodians and disseminators of Jewish tradition.[5]

“Mention is made of a controversy between Eleazar and Rabbi Meir at Ardiska.[6] He also maintained halakhic discussions with R. Judah bar Illai and Rabbi Jose,[7] and quite frequently with R. Shimon bar Yochai;[8] but he never appeared with them at the sessions of the Sanhedrin at Usha. Hence it may be assumed that he did not return to the scene of his ordination. Wherever he settled, he presided over an academy to which many students were attracted,[9] including Joseph or Issi ha-Babli[10] and Judah ha-Nasi.[11] Thus, while his name does not appear in rabbinic lore as often as the names of his colleagues at the ordination, Eleazar had a significant influence on the development of the TalmudRav styles him "the most excellent among the sages",[12] and R. Johanan expresses unbounded admiration for his large-heartedness.[13]” (https://en.wikipedia.org/wiki/Eleazar_ben_Shammua)

Sunday, August 14, 2022

What are the similarities and differences in the case of rape or seduction? TB Ketubot 38 & 39

Our dappim TB Ketubot 38 and 39 describes the similarity and differences between a case of rape and a case of seduction in Jewish law.

On daf TB Ketubot 38 we learned that the fine (קנס) for seducing or raping virgin is the same thanks to a gezerah shava. “If so, and the halakha can be logically inferred, why does the verse state: “Who was not betrothed”? This verse is free, as it is superfluous in its own context, and it is written to liken another case to it, and to derive from it a verbal analogy: It is stated here with regard to a woman who was raped: “Who was not betrothed,” and it is stated below: “And if a man seduce a virgin who was not betrothed” (Exodus 22:15). Just as here, with regard to rape, the Torah specifies that the payment is fifty silver pieces (Deuteronomy 22:29), so too below, with regard to seduction, the payment is fifty. And just as below, with regard to seduction, the payment is in shekels, as it is written: “He shall weigh [yishkol] money” (Exodus 22:16), so too here, the payment is in shekels.” (Sefaria.org translation)The fine for either rape or seduction is 50 shekels.

The Mishnah on TB Ketubot 39 continues to elaborate the difference between a seduction and a rape.

The seducer gives the father of his victim three things, and the rapist gives the father four. The mishna specifies: The seducer gives the father payments for humiliation, degradation, and the fine. A rapist adds an addition to his payments, as he also gives payment for the pain. What are the differences between the halakha of a rapist and that of a seducer? The rapist gives payment for the pain, and the seducer does not give payment for the pain. The rapist gives payment immediately, and the seducer does not pay those payments immediately but only when he releases her. The rapist drinks from his vessel [atzitzo], i.e., marries the woman he raped, perforce, and the seducer, if he wishes to release her, he releases her.

“The mishna clarifies: How does the rapist drink from his vessel? Even if the woman he raped is lame, even if she is blind, and even if she is afflicted with boils, he is obligated to marry her and may not divorce her. However, if a matter of licentiousness is found in her, e.g., if she committed adultery, or if she is unfit to enter the Jewish people, e.g., if she is a mamzeret, he is not permitted to sustain her as his wife, as it is stated: “And to him she shall be as a wife” (Deuteronomy 22:29), from which it is inferred that she must be a woman who is legally suitable for him.” (Sefaria.org translation)

Although initially the woman resists the advances of the seducer, she ultimately acquiesces to having sex with him. Even though there is some pain the first time a woman has sex, it is also coupled with pleasure. Because the woman acquiesces, the pain she experiences doesn’t reach the threshold that would require payment. Consequently, the seducer doesn’t have make a payment for pain. Rape is not sex, but a brutal attack on a woman. Obviously the pain she experiences surpasses the threshold and requires the rapist to make a payment for pain.

Lest you think the woman who was raped is forced to marry her rapist or seducer, the Gemara today teaches that both her father (because she is an adolescent still living under his control) and the victim have to agree to this marriage. “both the rapist and the seducer are obligated to marry their victim, both she and her father are able to prevent the marriage.” (Sefaria.org translation)

 She does not have to marry this man who violated her, but if she does, the rapist cannot divorce her. Similarly the woman doesn’t have to acquiesce to marry her seducer. Unlike the rapist seducer doesn’t have to marry her. However, if he doesn’t marry her he still has to pay the fine of 50 shekels.


Friday, August 12, 2022

Which of two punishments can the court enforce? TB Ketubot 37

The principle kim lay mederabah menay (קם (קים) ליה מדרבה מיניה) has been the underlying basis for most of the Gemara’s discussions for a whole week. This principle states that when a person is convicted of committing a sin with two different punishments like death and payment, the court can only enforce the harsher punishment. Finally, today’s daf TB Ketubot 37 provides us with the scriptural basis for this principle. In fact, we need two different verses to cover all the different combinations of punishments.

“The mishna states that one liable to receive the death penalty is exempt from payment, as it is stated: “And yet no harm follow, he shall be punished, etc.” (Exodus 21:22). (Two men are exchanging blows and a pregnant woman comes between them. One of the blows lands on her and causes a miscarriage. Nevertheless, in this scenario she doesn’t die. The man who struck her has to pay monetary damages for the fetus. If she died because of the blow, the man is liable for the death penalty and exempt from paying the damage of the fetus. gg) The Gemara asks: And is this principle derived from here? Actually, it is derived from there: “And to be beaten (i.e. lashed-gg) before his face according to the measure of his iniquity” (Deuteronomy 25:2). From the term: His iniquity, it is inferred: You can hold one who performs one action liable for one iniquity, i.e., punishment for violating one prohibition, but you do not hold him liable for two iniquities, i.e., punishments for violating two prohibitions.

The Gemara answers: One of these derivations, from the verse “And yet no harm follow” is stated with regard to one who performed an action for which he is liable to receive the death penalty and to pay money, and the liability to be executed exempts him from payment. And one of these derivations, from the verse “According to the measure of his iniquity,” is stated with regard to one who performed an action for which he is liable to receive lashes and to pay money, and he receives only one punishment. The Gemara elaborates: And both derivations are necessary, as if the Torah taught us this halakha only with regard to death and money, one would assert that the exemption from payment is due to the fact that there is loss of life, the ultimate punishment, leaving no room for additional punishment; however, in the case of lashes and money, where there is no loss of life, say no, there is no exemption and he is flogged and pays.

And if the Torah taught us this halakha only with regard to lashes and money, one would assert that the exemption from payment is due to the fact that the prohibition that he violated is not severe, as it is punishable by lashes, and for violating a prohibition that is not severe one does not receive two punishments. However, with regard to death and money, where the prohibition that he violated is severe, say no, he is not exempt from receiving two punishments. Therefore, it was necessary for the Torah to teach both derivations.” (Sefaria.org translation)

Thursday, August 11, 2022

"We can be our families best teachers" #devartorah#Vaetkhanan#parashat hashavua

 In an unsigned letter to the editor of the San Francisco Chronicle, the author writes: 

We teach best by example. Edmund Burke said, “Example is the school of mankind,          and they will learn at no other.” To me one of the clearest examples of teachers who             care about people they teach come out of the music classroom. Here are musicians,             performers themselves, some sufficiently talented to be recitalists. Yet they sit in a             room with a beginning violinist, listening to the squawk and screech and scrape of the         bow across those strings.  How can they stand it-the violation of their art, this                    desecration of music? Because a music teacher cares more about that child than about         the art itself

 Someone said, “A mediocre teachers tells, a good teacher explains, a superior teacher demonstrates, but the great teacher inspires.”…”A teacher affects eternity,” said Henry Adams; “he can never tell where his influence stops.”

No wonder the rabbis teach after a long list of commands, “And the merit of Torah study is equal to all of these.” (BT Shabbat 127a) The commandment to teach our children can be found in this week’s Torah portion, Va-etchannan for the first paragraph of the Shema is contained within it. One of the most important mitzvot enumerated in this prayer is to teach these words diligently to our children. (Dt. 6:4) The sages maintain that grandparents are also obligated to teach these things to their grandchildren. (BT Kid. 30a) The Sifre, an early midrash on Deuteronomy, expands this commandment to teach Torah not only to our biological children, but anyone whose impression of Judaism is likely to be shaped by their contact with you. (Etz Hayyim Humash, page 1026)

A test of the true measure of the Talmudic Jewish society Ketubot 36

Today’s daf TB Ketubot 36 cites two contradictory baraitot. The first baraita states: “An ailonit has neither a fine for rape nor a fine for seduction.” The second baraita states: “A deaf-mute, an imbecile, and an ailonit have a fine for rape and they have a claim concerning virginity.” (Sefaria.org translations) An ailonit is a woman who never matures physically. She remains a minor until the age of 20 when the rabbis assigned her the status of a bogeret (בּוֹגֶרֶת), an adult. This contradiction is easily dispensed with by assigning a different Tanna to each baraita. Rabbi Meir is the author of the first baraita because he holds that a minor doesn’t receive the fine while the Sages are the author of the second baraita because they disagree with Rabbi Meir and hold that a minor does receive a fine.

The more significant discussion concerns whether a deaf-mute and a mentally incompetent woman (I prefer this language to the Sefaria translation of imbecile) can make a counterclaim concerning their virginity. The day after the wedding night, the husband makes a claim that his bride was not a virgin. A bride makes a counterclaim saying that she was raped after she was betrothed.

The Gemara answers (the question about the minor has already been so simply resolved that there’s no need to even cite this contradiction-gg): He cited this baraita due to the fact that he has another baraita from which to raise as a contradiction to it: A deaf-mute, and an imbecile, and a grown woman, and a woman whose hymen was torn not in the course of sexual relations, do not have a claim concerning virginity, as they do not have the presumptive status of a virgin. However, a blind woman and an ailonit have a claim concerning virginity. Sumakhos says in the name of Rabbi Meir: A blind woman does not have a claim concerning virginity. The baraitot contradict each other with regard to the claim concerning virginity of a deaf-mute and an imbecile.

"Rav Sheshet said: This is not difficult, as this baraita is in accordance with the opinion of Rabban Gamliel, who holds that a woman who, in response to a claim concerning her virginity, is believed if she says that she was raped after her betrothal and therefore does not lose her marriage contract. And that baraita is in accordance with the opinion of Rabbi Yehoshua, who says that a woman is not believed if she makes that claim, and therefore she loses her marriage contract. The Gemara asks: Say that you heard that Rabban Gamliel accepts her contention in a case where she claims that she was raped after the betrothal; however, in a case where she did not claim that that was the case, did you hear that he accepts her contention? The Gemara answers: Yes, since Rabban Gamliel said she is believed when she states that she was raped after betrothal, the deaf-mute and the imbecile are also believed even though they are unable to make the claim, as in a cases like that, it is a case of: “Open your mouth for the mute” (Proverbs 31:8). When a person lacks the capacity to proffer the claim on his own, the court makes the claim on her behalf.” (Sefaria.org translation)

Between Rabbi Yehoshua and Rabban Gamliel, I believe that Rabban Gamliel’s position is the more compassionate one and in my eyes the more correct one. Mahatma Gandhi taught “The true measure of any society can be found in how it treats its most vulnerable members.” Concerning the cases of a deaf-mute, mentally incompetent woman, and a blind woman classical Jewish law fails them and I claim the Jewish society which I am so proud of doesn’t measure up to the standard I hold it to. See Shulkhan Arukh, Even Haezer, 66:1, 67:5, 7-8



Wednesday, July 27, 2022

The words we speak#devartorah#Matot-Masai#parashathashavuah

The story is told about a man who was invited to give what was supposed to be a brief talk at a Yale University alumni gathering.  Basing his comments on the four letters that spell YALE, he began by saying that the letter Y stands for Youth-the young people who come to the university with such promise.  The A, he continued stands for Achievement-the success of the school’s graduates.  After lengthy remarks on the Y and the A, he came to the L, pointing out that it stands for Loyalty-the devotion of Yale alumni to their alma mater.  Finally he came to the E, saying that it stands for Enthusiasm-the feeling Yale graduates have about their school.  An hour and a half later the speaker sat down.  During the pause that followed, a bored guest whispered to his neighbor, “I’m sure glad he didn’t graduate from the Massachusetts Institute of Technology!”

This week’s portion Mattot-Massai begins with the importance of choosing our words wisely, especially when it comes to making vows.  According to the Midrash Tanchuma “God said to Israel, ‘Be careful what you vow, and do not become addicted to making vows, for whoever is so addicted will, in the end, sin by breaking his oath…”  The rabbis taught that it is better to not vow than to vow and not fulfill the oath.

Somebody once said, “The missing ingredient in most of our talking is a little shortening.”  Let’s be careful about both the quality and the quantity of our words.  And if we make a pledge, vow, or promise, let us strive to keep it.