Uncertainty regarding Liability by Damages

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The Gemora (Bava Kamma 3a) asks: Why didn’t the Torah just write v’shilach, which connotes both shein and regel (which the Gemora proceeds to prove), and u’vier would not be necessary?

The Gemora answers: If the Torah would only write v’shilach, we would only have learned that one is liable for one of those damages; either regel because its damage is usual, or shein because it has physical pleasure when damaging (but we would not have learned that there is liability for both types).

The Gemora asks: But they are both equal, so let us derive both types of damages from one verse, for which one of them would be excluded?

The Gemora answers: If shein and regel would be derived from one verse, we might have said that one is liable only if the owner sent the animal out; however, one would not be liable if the animal went out by itself and damaged. The Torah therefore writes u’vier as well.

The Rashba asks on the Gemora’s question: Why would we learn out both damages from one verse based on the fact that we do not know which one of them to exclude? On the contrary! Since we are trying to extract money from the damager, why don’t we apply the principle that the one who is attempting to extract money is the one who is obligated to bring the proof?

A possible answer on this question is that damages are treated as prohibitions, and the rule is with respect to prohibitions that when in doubt, we rule stringently. Accordingly, we can understand why both damages will be included in one verse since we do not know which one to exclude. Why didn’t the Rashba answer like this?

The Chasam Sofer adds that this is even more problematic, for the Rashba himself (2b) uses this principle to answer a different question. The Gemora had stated: One might think that when the Torah differentiates between a tam (an ox that did not yet gore three times; the owner only pays for half the damage) and a mu’ad (an ox that gored already at least three times; the owner pays the full amount of the damage), it is only when the horn is disconnected from the animal (in a case where the animal took its uprooted horn in its mouth and gored; as the case of Tzidkiyah was of an unattached set of horns). However, when an animal gores with its horns attached to its head, it should always pay full damages. This is why the braisa quotes the additional verse from the Torah.

The Rashba there asked: On the contrary! Let us say that when an animal gores with its horns attached to its head, it should always pay half damages!?

He answered that damages are treated as prohibitions, and the rule is with respect to prohibitions that when in doubt, we rule stringently. Accordingly, when faced with the option of always paying full damages or paying half, the Gemora chooses the option of paying in full.

It would therefore seem that the Rashba is contradicting himself! How do we treat damages? Do we automatically rule stringently because it is like a prohibition, or do we rule leniently, for we are attempting to extract money away from the one who possesses the money, and for that, proof is needed?

The Har Tzvi suggests the following answer: The Levush (C”M 378) writes that not only does the Torah obligate the damager to compensate the person who was damaged, but there also is a prohibition to damage someone else’s property, in the same manner that it is forbidden to steal. If someone does not guard his possessions against inflicting damage on someone else’s property, he has violated a Biblical prohibition.

Accordingly, the Rashba can be explained as follows: The Gemora above was discussing a case where the damager is certainly obligated to pay. The animal inflicted damage with a disconnected horn in its mouth. The Gemora’s only question was with respect to the amount of the compensation. Should he always (whether it’s a tam or a mu’ad) pay full damages, or should he only pay half. In such a case, we would rule stringently, for the owner has indeed transgressed the prohibition of allowing his animal to cause damage. He now has to “fix” his sin by compensating the owner for his loss. This would be similar to a case where one said to his fellow, “I know that I owed you money, but I do not know if I paid.” He would be obligated to pay. However, in our case, where the Gemora is not certain if one should be liable at all for shein or regel; we must rule leniently. For it is quite possible that the Torah did not mandate that there should be any obligation to guard one’s property against causing such a damage. This is why the Rashba asks that if we are uncertain if there is any liability at all, we should rule leniently, and apply the principle of the one who is attempting to extract money is the one who is obligated to bring the proof. Accordingly, there is no contradiction at all.

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Permitted Rulings

The Gemora (Daf Yomi: Gittin 41b) had stated, applying the classic principle that it is preferable to render a permissible ruling. Rashi in Beitzah (2b) explains that this means that something that is permitted indicates that the Tanna is relying on his knowledge of the subject matter, and is not afraid to rule leniently. One can be strict even if he is in doubt and it does not necessarily indicate the conclusiveness of the ruling.

Rashbam in Pesachim (102a) writes that if there is no compelling logic to rule stringently, then ruling leniently is not regarded as a more preferred option. Rather, it is the only option. The Rema in his responsa (§ 54) rules that one is not allowed to be stringent regarding an issue where there is no uncertainty.

Pischei Teshuvah (Yoreh Deah 116:10) cites a dispute amongst the Acharonim if one is permitted to be stringent for himself regarding a matter that has been permitted by the Torah, such as a prohibited matter that was nullified.

Bnei Yissachar writes that it is a mitzvah not to be stringent in such a situation.

The Tzlach writes that it is preferable to record the permitted ruling regarding a situation that may be subject to a Biblical prohibition, because if there would be uncertainty, we would be compelled to rule stringently. The Tanna would not be introducing a novel ruling if the ruling was that the matter is prohibited. Regarding a matter that may be subject to a Rabbinic prohibition, however, the reverse would be true. It is preferable to record the stringent ruling because if there would be uncertainty, we would rule leniently.

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Two Leniencies and Two Stringencies

The Gemora (Kesuvos 82a) had stated that we do not find a Tanna ruling stringently on two matters in respect to a kesuvah. Rashi explains that since a kesuvah is a Rabbinic enactment in the first place, we cannot rule with extreme stringencies. Therefore, we cannot rule that moveable objects are pledged for the kesuvah (in accordance with Rabbi Meir) and that the kesuvah may be collected from the debtor of the deceased husband (in accordance with Rabbi Nosson).

The Rif writes that this particular halachic ruling is not applicable nowadays. In the times of the Gemora, the society was an agricultural one and therefore, only real estate was pledged for the kesuvah. However, now that we maintain that all of the husband’s possessions are pledged for her kesuvah, this is not regarded as a stringency and therefore we can rule that the kesuvah may be collected from the debtor of the deceased husband.

Rabbi Braun in Sheorim Mitzuyanim B’halacha points out that the inverse is true as well. In a situation where we rule leniently, we do not rule according to two leniencies. Shulchan Aruch (Y”D, 199:7) writes that although there are times that we allow a woman to immerse herself in a ritual bath during the daytime, we will inform her then that she must clean herself immediately prior to immersion, and we do not rely on the leniency which normally allows a woman to prepare herself a significant time before immersion.

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Timtum Haleiv

The Gemora cites a braisa (Kesuvos 60a): A child may be nursed until he is twenty-four months. From that age and onwards, he is to be regarded as one who is nursing an abominable thing (the Rabbis forbade it); these are the words of Rabbi Eliezer. Rabbi Yehoshua said: He may nurse even for four or five years. If, however, he ceased nursing after twenty-four months and started again, he is to be regarded as one who is nursing an abominable thing.

The Rashba asks: Something that is forbidden on a Biblical level, we are not permitted to provide for a child; however, there is no prohibition to give a child something that is only Rabbinically prohibited. Why would it be forbidden to let the child nurse?

Rav Elyashiv adds: Here, there is not even a Rabbinical prohibition!

He answers: We find that there is a halachic stringency not to allow a child to nurse from an idolater; this may result in timtum. So too, when a child is beyond the age where he should be nursing, if we allow him to nurse, it can lead to timtum.

There is a discussion amongst the Poskim if one eats a permitted item in a time that it is prohibited to eat (such as Yom Kippur, prior to davening or kiddush etc.); does that eating result in timtum or not. However, in our case, Rav Yitzchak Zilberstein asks: The milk is not a forbidden item at all! If we would extract the milk and place it into a utensil, it would be permitted for consumption; the prohibition is only when the child is nursing directly from the mother. Why should we assume that this may result in timtum?

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Husband Imposing Stringencies on his Wife

Rav Yosef taught the following braisa (Kesuvos 48a): Her she’eir implies close bodily contact. This means that he must not treat her in the manner of the Persians who perform their conjugal duties in their clothing. This provides support for a ruling of Rav Huna who stated that a husband who said, “I will not perform my conjugal duties unless she wears her clothes and I mine,” must divorce her and give her a kesuvah also.

The Ritva comments: Even though he is wearing his clothes for modesty purposes, and even if she would do the same, this would have the status of rejecting relations since it is not in an intimate manner and is therefore grounds for divorce.

Reb Avi Lebowitz points out that the Ritva does not seem to reject the notion that it would be more modest in this way; rather, it seems from the Ritva that in truth, one can make a legitimate claim that they want to maintain this stringency for the sake of modesty, nevertheless, she is not bound to keep his stringencies, and he therefore cannot impose this stringency on her without her consent.

Shulchan Aruch (YD 185:3) issues the following ruling: If a woman told her husband that she is a niddah, and later she retracts and says that she is not, she is not believed. If she gives an amasla, e.g. an excuse, such as, at first she said that she is niddah because she did not have strength for cohabitation, then, she is believed.

The Rama states that if the husband wants to be stringent on himself not to believe her, it is regarded as virtuous (midas chassidus).

The Chasam Sofer (Y”D, 149) discusses a case where a woman showed her garment to a Rav to determine if she is a niddah or not, and she was told by the Rav that she is permitted, but the husband who is a Torah scholar wishes to be stringent. The Chasam Sofer elaborates to explain that the nature of being married to a Torah scholar is to accept his stringencies, and his stringency may be imposed on her.

Reb Avi explains that by analyzing the context of the Chasam Sofer, it becomes evident that he cannot impose any stringency that he chooses on her. He is speaking of a situation where it should have been expected that he would keep these types of stringencies, but in cases where at the time of the marriage, there was not any expectation for him to act stringently, he cannot impose his stringencies on her, which would conform with the implication of the Ritva.

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HOW SHOULD WE RULE? - Yevamos 83 - Daf Yomi

The Gemora cites a Mishna which states that if one plants a tree within thirty days of Rosh Hashanah prior to a Shemitah year, the tree must be uprooted. Rabbi Yehuda maintains that a tree takes root within three days. Rabbi Yosi and Rabbi Shimon hold that a tree takes root within two weeks of its being planted.

The Rambam and other poskim all rule in accordance with Rabbi Yosi and Rabbi Shimon. The Sfas Emes questions as to why the Rambam does not rule regarding lands outside of Eretz Yisroel in accordance with Rabbi Yehuda who holds that three days is sufficient. There is a principle that we rule outside of Eretz Yisroel in accordance with the viewpoint which is most lenient in Eretz Yisroel.

The Shagas Aryeh (14) and the Noda Beyehuda (kamma Y”D 88) answer that whenever the Gemora rules explicitly like the Tanna who is stringent, the principle of ruling in Chutz La’aretz in accordance with the lenient opinion does not apply.

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Daf Yomi - Chagigah 4 - HOW TO RULE IN CASES OF UNCERTAINTY

The Gemora continues to analyze the braisa. It is understandable why a verse is needed to exclude an androgynous from the mitzva of re’iyah. One might have thought that he should be obligated since he has a masculine side to him; the verse teaches us that he is considered a creature unto himself and is not obligated in this mitzva. The Gemora asks: Why is a verse needed to exclude a tumtum; it is undetermined if he is a male or a female, and a verse should not be necessary to exclude a case of doubt?

Rashi learns: Why would we think that a case of doubt would be obligated in the mitzva.

Turei Even asks: There is a principle that in matters of Biblical law, we rule stringently (safek d’oraysa l’chumra); wouldn’t this explain why we would think that a tumtum should be obligated in the mitzva of re’iyah?

Sfas Emes states: It would be evident that Rashi maintains that this principle is only true Rabbinically. The Torah would rule leniently in a case of doubt; The Rabbis decreed that we must rule stringently in these matters. (This is the opinion of the Rambam and other Rishonim.) This will explain the Gemora’s question. We should not need a verse to rule leniently on a tumtum if the Torah always rules leniently regarding cases of uncertainty.

There are those that are not satisfied with this explanation in Rashi, for Rashi in Kiddushin (73a) seems to hold that in a case of doubt, we rule stringently even from a Biblical point of view.

The Peri Megadim (O”C 17:2) differentiates between cases where one would be transgressing a commandment in a manner where he is committing an action against the Torah and one where he is sitting passively without performing an action against the Torah.

Using this principle, we can reconcile the contradiction in Rashi. (I found this in explanation in Kuntrus Kol Hamesifta.) In our instance, the Torah would dictate that the tumtum is not required to embark on the festival pilgrimage since we are uncertain of his status and the Torah rules leniently in cases of uncertainty and states, “One is not mandated to perform an action,” – only Rabinically, would he be obligated to ascend to the Beis Hamikdosh. However, Rashi in Kiddushin is referring to a case where the Torah rules stringently because there the Torah is instructing him not to perform an action (he is prohibited from marrying a safek mamzeres).

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