Bava Kama

Bava Kama 78b: Making Restitution with a Cheaper Esrog

Bava Kama 78b: Rava asked: If a man vowed to bring an olah, and set aside an ox, and someone stole it, can the thief make restitution with a sheep (or a bird according to Rabbi Elazar ben Azariah who holds that one making a vow without specifying the size of the animal can use a bird)? Do we focus on the vow which was to bring any olah, or can he demand an ox on the grounds that he wishes to perform the mitzvah in the best way? Rava answered his own question: He may make restitution with a sheep or a bird.

בבא קמא עח ע”ב: בעי רבא: הרי עלי עולה והפריש שור, ובא אחר וגנב, מי פטר גנב נפשיה בכבש לרבנן, בעולת העוף לר׳ אלעזר בן עזריה? דתנן: הרי עלי עולה ־ יביא כבש, ר״א בן עזריה אומר: יביא תור או בן יונה, מאי? מי אמרינן שם עולה קביל עילויה, או דלמא מצי א״ל אנא מצוה מן המובחר בעינא למיעבד? בתר דאיבעיא הדר פשט: גנב פטר עצמו בכבש לרבנן, בעולת העוף לר׳ אלעזר בן עזריה.

In 1903, Rabbi Elchonon Wasserman began his first position as rosh yeshiva in Mtsislavl. One of his talmidim from that period, Rabbi Shmaryahu Nochum Shushenkin, kept a diary in which he described Reb Elchonon’s teaching method. “It was Reb Elchonon’s practice to stop delivering his shiur for a day or two after the completion of a Perek, or half a Perek, if it was lengthy, to allow the students to review what they had learned so far. For this he would organize groups of four or five students with similar abilities. Because of his erudition in the writings of the Acharonim, he was capable of sharpening and testing his students by means of an interesting device. He would pose questions to them which had been answered by the Acharonim, for instance Noda Beyehuda, Rabbi Akiva Eiger, Chasam Sofer and others, by reference to the Gemara or Tosafos which the pupils had been studying. If the Gemara or Tosafos had been thoroughly assimilated and retained in the student’s mind, he would discover the answer to Reb Elchonon’s questions in the Gemara he had been studying that day or the day before.

“I remember one question posed to us by Reb Elchonon. Someone had stolen an esrog of superior quality. Could he make restitution by giving the owner a kosher, but not so beautiful esrog? We found the answer in Rava’s remark in Merubah. There the case is mentioned of someone who had vowed to bring a korban olah and had set aside an ox for the fulfillment of his vow. A thief stole the ox. According to the Sages, the thief can free himself from further obligation by restoring a sheep, and according to Rabbi Elazar ben Azariah, even by a bird suitable for a korban olah. Similarly in our case, the thief may free himself of further obligation by restoring an esrog of inferior quality, as long as it is kosher. The plaintiff’s argument – “I want to perform a mitzvah in the most elegant manner” – has no validity.

Source; Reb Elchonon (Artscroll), p. 41

[The comparison between a korban and an esrog is surprising. A korban does not belong to the vower, and the thief is only paying because of Rabbi Shimon’s rule that דבר הגורם לממון כממון דמי (something that causes you to lose money is like your money), as Rashi says. Since if the thief were not caught, the vower would only have to bring a sheep to replace the ox, the thief too need only pay for a sheep. But an esrog is not consecrated to hekdesh, and it is the regular property of the owner. How then can a thief make restitution with something worth less than what he stole?

It seems that Reb Elchonon was saying a tremendous chiddush here: an esrog is not intrinsically worth the amount of money you pay for it. It is valuable only as a דבר הגורם לממון, and is therefore only worth the amount that you would have to pay to do the mitzvah at the simplest level.

Of course, this would only apply to the person planning to use the esrog for the mitzvah on Succos, not to a merchant. Thus a thief who stole a $100 esrog from an esrog store could not make restitution with a $50 esrog. (See the article “Purloined Esrogim” by Rabbi Meir Orlian of the Business Halacha Institute, in which someone stole expensive esrogim from a merchant before Succos and returned them after Succos. The psak there was that he must pay their full pre-Succos value.)

The Chazon Ish (Bava Kama 6:3) similarly rules that if someone damages a person’s house, the amount he pays would depend on what the owner intends on doing with the house. If he plans to fix the damage, he would pay the cost to fix it, but if he plans to sell it, he would only pay the negligible amount by which the house dropped in value.

However, the Chazon Ish there quotes a Rashi that seems to contradict all of the above. Rashi in Gittin 53a says that if kohanim ruin a korban through pigul, they have to pay even if the korban was a nedavah, an optional korban for which the owner is not responsible if lost. Even though they didn’t cause the owner any loss, he can argue that he wanted to bring his korban and thus suffered a loss. How does this fit with Reb Elchonon, and indeed, with the Gemara we began with in Bava Kama 78b? Maybe Rashi means that he will not replace the korban at all, so he is demanding compensation for his disappointment at not bringing any korban. In our case, however, he is replacing the korban (or esrog), albeit with a less expensive one.

As an aside, we can learn from Reb Elchonon the great value of analyzing stories and real life cases in order to better understand the Gemara.]

Bava Kama

Bava Kama 47a: When One Dog Attacks Another

Bava Kama 47a: If one man brought his ox into another man’s front yard with permission, and the house owner’s ox gored it, or his dog bit it – the house owner is liable. Rebbi says: He is not liable unless he took upon himself to guard it.

Shulchan Aruch Choshen Mishpat 398:5: The Mechaber rules like Rebbi and the Rema rules like the Sages (the anonymous first opinion in the Mishnah). 

בבא קמא מז ע”א: הכניס שורו לחצר בעל הבית שלא ברשות, ונגחו שורו של בעל הבית או שנשכו כלבו של בעל הבית ־ פטור וכו’ ואם הכניס ברשות ־ בעל החצר חייב, רבי אומר: בכולן אינו חייב עד שיקבל עליו לשמור.

חו”מ שצ”ח ס”ה: ואם הזיק שור בעל החצר לשור הנכנס ברשות פטור, אלא אם כן קבל עליו בעל החצר שמירתו. הגה: ויש אומרים דכיון דנתן לו רשות ליכנס הוי כאלו קיבל עליו שמירתו. (טור בשם ר״י והרא״ש) .

A woman in Woodridge, New York had a ferocious pitbull, and her grown son also had a dog. The two dogs did not get along, so whenever he visited her, she was careful to keep the pitbull locked up. But one time she forgot and left it loose. It immediately attacked the other dog, injuring it badly. She asked Rabbi Hillel Grossman, the rav of Woodridge, if she had to pay.

The question can be broken down into two issues: 1) Is the halacha like the Mechaber or the Rema? 2) Even if the halacha is like the Mechaber, maybe since both of them knew that the pitbull would be likely to attack the other dog, the understanding between them when the son entered was that the mother would lock up her pitbull, so it is considered that she took upon herself at least this level of caution.

Bava Kama

Bava Kama 46a: The Ferocious Newborn Calf

Bava Kama 46a: If a cow gored an ox, and we find its newborn calf next to it, and we don’t know whether the calf was born before the goring or afterward, he collects half the damages from the cow or a quarter of the damages from the calf.

ב”ק מו ע”א וכן פרה שנגחה את השור ונמצא ולדה בצדה, ואין ידוע אם עד שלא נגחה ילדה אם משנגחה ילדה ־ משתלם חצי נזק מן הפרה ורביע נזק מן הולד.

When R’ Yaakov Kamenetsky was 10 years old, he had a rebbe who taught this Mishnah incorrectly. The Mishnah actually means that the owner of the ox is claiming that the cow was still pregnant when it gored. Since damage payments for an animal that was not accustomed to gore (תם) are limited to the value of the animal, he claims that the baby was inside its mother at the time of the incident, so that he may collect from both the mother and the baby. The owner of the cow claims that the baby was already born before the incident, and thus is not subject to collection.

This rebbe, however, got the arguments reversed. He said that the owner of the ox claims that the baby was already born, and it too participated in the goring, so it is subject to collection; the owner of the cow claims it was not born yet and is thus innocent.

Reb Yaakov, having grown up on his grandfather’s farm, had seen newborn calves and knew that they could hardly stand on their feet and are incapable of goring. He asked his rebbe, “But how could a newborn calf gore?” The rebbe shouted at him, “How dare you argue on a Mishnah like an apikorus? From asking such questions, I am sure you will someday go off the derech!” 

The young boy humbly accepted his rebbe’s explanation, but still struggled to imagine a baby calf causing damage. But then he remembered hearing his mother read a story from the Tzenah Urenah (Parshas Noach), based on a Midrash (Vayikra Rabbah 5:1) which says:

עובדא הוה בחד אתתא דילידת בלילה ואמרה לברה אזיל ואדליק לי בוצינא ואנא קטע שורך אזל למדלק בוצינא ופגע ליה שידא שריהון דרוחתא עם דמתעסקין דין עם דין קרא תרנגולא א״ל אזיל גלוג לאמך ואמור לה אילולי דקרא תרנגולא הוינא קטיל בך א״ל אזיל גלוג לאמא דאמך דלא קטעת אמי שורי דאי קטעת אמי שורי הוינא קטיל לך.

Before the Mabul, a mother once told her newborn baby to go fetch a candle so that she could cut his umbilical cord. While out, he met the Prince of the Demons. As they were talking, the rooster crowed. The demon said, “Go tell you mother that had the rooster not crowed, I would have killed you.” The baby replied, “Go tell your mother’s mother that had my mother cut my umbilical cord, I would have killed you.”

The young Reb Yaakov concluded that the Mishnah must be talking about a monetary dispute in the generation before the Mabul, when even newborn babies were strong and capable. Later in life, he joked, “This was the first of my chiddushei Torah.”

Source: Making of a Godol, p. 144

Bava Kama

Bava Kama 110b: Annulling a Marriage Retroactively

Bava Kama 110b: If so [if a person’s korban reverts to his heirs when he dies without getting kaparah from it, since he consecrated it in error], shall we then say when a woman’s husband dies and his brother is afflicted with ugly boils, she should be free without chalitzah, for she married him in error? – There it is different, because we are witness that she is happy with any marriage, and thus it was worth it to her to be married to her husband, even if that would result in her being stuck at the mercy of his ugly brother.

בבא קמא קי ע”ב: אלא מעתה, יבמה שנפלה לפני מוכה שחין תיפוק בלא חליצה, דאדעתא דהכי לא קדשה עצמהִ התם אנן סהדי דמינח ניחא לה בכל דהו, כריש לקיש, דאמר ר״ל: טב למיתב טן דו מלמיתב ארמלו.

In 1981, a woman in her 60s entered the office of Tel Aviv’s beis din, chaired by Rabbi Yitzchak Yedidya Frankel. The woman had recently arrived from Bukhara, and when she told her story, tears welled in the eyes of all those present.

She had married in 1941 while living in Bukhara, but just before the wedding the Germans swept into the Soviet Union in a surprise attack. Her fiancé was drafted into the Soviet army, they married, and shortly afterward he was sent to the battlefield and killed. His death was verified beyond a doubt, but this left the young widow in need of chalitzah from her late husband’s brother in order to be free to remarry. The brother, however, was an official in the Communist Party and he absolutely refused to participant in anything that smacked of religion. He left her as an agunah for 40 years – though he knew of the suffering he was imposing on her, he would not soften his position.

Despite this woman’s lack of any formal Jewish education, she stood fast to her principles and withstood this incredible nisayon. Now in her later years, she approached the beis din and asked if there was any way to permit her to marry, so that she would not be forced to spend the rest of her life all alone.

The beis din, which consisted of Rabbi Frankel, Rabbi Shmuel Baruch Werner and Rabbi Shlomo Tenne, searchd high and low to find a glimmer of hope for this courageous woman. Finally, they found grounds for leniency, based on the fact that her brother-in-law had discarded his Jewish identity entirely.  The Mordechai brings the Maharam, who says that although the Gemara says it is worth it to a woman to get married even at the risk of falling to the mercy of an ugly brother, it is not worth it to her when the brother is a mumar, someone who has discarded his Jewish identity. The only reason she married him, says the Maharam, was because she did not know about the existence or lifestyle of the brother, or else she did not know about the laws of chalitzah. Since this was a highly unusual case with little precedent, they were hesitant to rely on their own findings, so they sent them to Rabbi Moshe Feinstein for his approval.

Several weeks passed and they heard no word from Reb Moshe. Finally Rabbi Frankel called Reb Moshe’s home one day at 4:00 in the afternoon (9:00 in the morning in New York). He related the story of the poor woman’s plight and emphasized that we must not prolong her suffering any longer than necessary. It was obviously by the tone of Rabbi Frankel’s voice that he was upset by the fact that he had not received a reply all this time.

Reb Moshe apologized profusely, explaining that he had never seen the letter from the beis din. Apparently, his family members had withheld it from him due to his frail health (he was almost 90 years old). He promised to demand that he be shown the letter immediately and that he would respond promptly. Just four hours later, the doorbell rang. It was a messenger from the Israeli Postal Service with a telegram in hand. The message, in Hebrew words and in Latin characters, was: “She may get married. My responsum will follow. Moshe Feinstein.”

Reb Moshe’s handwritten responsum arrived via airmail some two weeks later. His decision was based not on the fact that the brother was anti-religious – we don’t pasken like the Maharam – but rather on the fact that this case is different from the Gemara’s in that there must have been information the wife did not know at the time of marriage. In the Gemara’s case, where the husband was healthy and his life was not in danger in any way, she made an informed decision to marry him and accept the risk of falling to yibum. In the Bukharian case, where there was a war raging and her husband had been drafted, why would she marry him knowing that he was likely to die? It could only be that she was misinformed: either she did not know about chalitzah at all, or she knew but assumed that this brother did not count as a Jew. Therefore her marriage was in error and she is permitted to remarry without chalitzah. 

[There is a question here in pshat in the Gemara. The Gemara distinguishes between the case of a person who was makdish a korban and then died, and the woman who got married and then her husband died. In the case of the korban, we say that had he known he was going to die, he would not have been makdish it, so retroactively the korban was never a korban and it falls to his heirs. In the case of the husband dying, we say that the woman got married knowing the risks and the marriage is not invalidated retroactively. What is the difference?

We could answer this by positing a difference in the case, or a difference in the logic. The “difference in the case” approach would be to say that in the korban case, he died quickly, within the short time it takes to bring the korban to the Beis Hamikdash. Thus we can assume that he must have had some hidden sickness before, of which he was not aware, and therefore this is not נולד. The consecration of the korban was בטעות because he was not fully aware of the risk he was taking. In the husband dying case, the husband may have died several years after the marriage. Quite probably he was not sick at the time of the marriage, so the risk of him dying was not any greater than anyone else. The woman’s decision was fully informed, so the marriage is not invalidated.

The “difference in logic” approach would be to say that in both cases the man probably had some condition that raised his risk of dying, but a wife has a higher risk tolerance, since the benefit of being married now tips the scales of her mind. So although she was unaware of the husband’s condition, still she would have married him even had she known the true risk. But in the korban case, had the man known about his own medical condition, he would not have been makdish the korban.

In our story, the woman was aware of the risks, since the German invasion had already happened and her husband had already been drafted before the marriage. These risks are much higher than the usual risk of a person dying, even a person with a medical condition. Also, there is a smaller benefit to tip the scale, since she would only be with the husband for the short time prior to his deployment. Reb Moshe therefore reasoned that there is no way she would have married him, unless she were misinformed about something else: she did not know about chalitzah at all, or she knew but assumed that this brother did not count as a Jew.]

Source: Hamodia, Vayeitzei 5780

Bava Kama

Bava Kama 94a: Making a bracha on stolen food

Bava Kama 94a:  Abaye said: From where do we see that Rabbi Eliezer ben Yaakov is of the opinion that a physical change in the stolen object does not cause the thief to acquire it? From this Baraisa: Rabbi Eliezer ben Yaakov says: If someone stole a measure of wheat, ground it, kneaded it, baked it and separated challah, how can he make the blessing? He would not be blessing but rather insulting, and regarding this Scripture says, “If one steals and blesses, he has insulted Hashem” (Tehillim 10:3).

Rava replied: How do you know? Maybe Rabbi Eliezer ben Yaakov only said that regarding the blessing, because it is a mitzvah that came through a sin.

 ר’ אליעזר בן יעקב מאי היא? דתניא, ר׳ אליעזר בן יעקב אומר: הרי שגזל סאה של חטין, טחנה, לשה ואפאה והפריש ממנה חלה, כיצד מברך? אין זה מברך אלא מנאץ, ועל זה נאמר: (תהלים י׳) בוצע ברך נאץ ה׳. … אמר רבא: ממאי? דלמא … עד כאן לא קאמר ר׳ אליעזר בן יעקב התם ־ אלא לענין ברכה, משום דהוה ליה מצוה הבאה בעבירהֹ.

Rabbi Yisroel Salanter, when he lived in Vilna, made his living by saying shiurim. When he moved to Kovna, the kehillah appointed him to an administrative position. After he left Kovna, he had no source of income, so one of his talmidim began to support him. Reb Yisroel hated to have to take from others, firstly because he followed the Rambam’s opinion that a talmid chochom should never take support for his learning, and secondly because he was afraid that he was not as great as people thought he was, so they were giving him under a false assumption, and thus he was stealing their money.

Once, a rav came to visit him during a meal, and Reb Yisroel said to him, “Would you like something to eat? It’s kosher food.” The rav was puzzled, so Reb Yisroel explained with a smile, “For me it could be that the food is not kosher, since it’s stolen, but I have already acquired it by making a שינוי מעשה, a physical change, so for you the food is kosher.”

[It would seem that since we hold שינוי מעשה קונה – a physical change causes the thief to acquire the item – the thief himself is allowed to eat it too, and the only problem is making a bracha on the food. This is brought down by the Mishnah Berurah 196:4, and his conclusion is that one should not make the bracha, except for Birkas Hamazon which is a Torah obligation.

משנה ברורה קצ”ו סק”ד: אם גנב או גזל חטים וטחנן ואפאן י״א שאע״פ שקנאן בשינוי והרי הם שלו אלא שחייב לשלם לו דמים עבורם מ״מ אסור לברך ע״ז בין ברכה ראשונה ובין בהמ״ז דלענין ברכה דאית בה הזכרת השם חמיר טפי ותמיד הוא בכלל נאוץ וי״א דהואיל וקנה יכול לברך ודעת המ״א דלענין בהמ״ז אם אכל כדי שביעה יש להורות בזה שיברך בהמ״ז דהוא דאורייתא ויש להחמיר ולברך.

Accordingly, it would seem that Reb Yisroel meant that perhaps he himself should not make a bracha on the food, but the guest could certainly make a bracha. Besides this chiddush – that the prohibition on making a bracha on stolen, changed food does not apply to the thief’s guest – we also see here that Reb Yisroel considered buying food with stolen money no better than a physical change. The counterargument would be that since this is not the same item at all, but something else exchanged for it, the rule that the bracha is an insult does not apply.]

Source: Kisvei Hasaba Vetalmidav Mikelm, v. 2 p. 787