One of the problems of my blog is I do not follow a committment to write only about parsha or daf yomi or some other externally relevant barometer to keep me on any track, so if you are reading you are stuck being shlepped along with whatever I feel like learning. Hope no one minds reviewing some Ketzos…
In a case of ba bamachteres (Sanhedrin 72) where a homeowner has a right to kill a thief caught breaking and entering, the thief is not obligated to return the stolen goods because the thief cannot incur two penalties – potential loss of life as well as an obligation to repay stolen goods – with the same crime. Rav is quoted as applying this rule even if the thief still has the stolen goods in his possession; Rava disagrees and holds that only if the goods are broken is the thief exempt from restitution, but if the stolen property exists, the thief must return it. The gemara relates that Rava’s own property was stolen in a case of ba bamachteres, and when the thief came to return the stolen goods Rava refused to accept them in deference to the Rav’s statement.
The gemara Bava Metziya 91 writes that if one threshes with a muzzled cow, one is chayav malkos and must also pay for the food deprived to the animal. Why, asks the gemara, do we not invoke the rule disallowing double-jeopardy? Rava answers (see the gemara for other solutions) that the court cannot impose two punishments, and will only mete out the punishment of malkos for the crime. However, there remains a moral obligation la’tzaeis y’dei shamayim on the individual to make approproate financial restitution.
Rava proves his answer from the law of esnan zonah – an animal pledged to a prostitute is unfit for use as a korban even if one would be liable for death for having relations with that prostitute (e.g. in a case where she is a blood relative like a mother). The disqualification of the korban is not considered double-jeopardy because although the court cannot enforce payment to the prostitute, the criminal still remains morally liable b’ydei shamayim to fulfill his financial obligation, and that financial obligation disqualifies the korban.
The Rishonim ask: why in the ba ba'machteres case did Rava not accept repayment of his stolen goods (he was not simply being moichel, but refused to even acknowledge the debt)? Even if the court could not impose a payment based on the principle of no double-jeopardy, the thieves remained morally obligated l’tzaeis y’dei shamayim to make restitution?
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Of course, this is rashi and tosfot's explanation of etnan asra torah. It's not a problem for the chachmei hatzarfatim quoted in the meiri - that the principle of etnan asra torah teaches us that kim lei bederaba minei doesn't apply to tnai derech masa umatan, only to nezikin and onshin.
ReplyDeletei have some ideas to answer this in a 'lomdishe' way, but the simple way out seems to be that rav's position was that in cases of kim lei there's something called 'be-damim knenhu' which serves to make a bona fide acquisition on the gonif's behalf. see yad ramah ad loc (the end of the really long paragraph). rav's position is not accepted.
ReplyDeletegetting fancier, even acc. to rava, we can ask, does kim lei erase the second crime, or the second punishment. in certain cases, it's obvious that it's the latter. for example, your case of etnan. there's one crime with two potential punishments, so the latter punishment is not enforced, but that doesn't mean it doesn't exist on some moral plane.
same with 'bal tachsom' - there are no 2 crimes, so even though the second punishment is unenforcable, it exists.
that's the definition of chiyuv latzet yedei shamayim - you have a very real obligation, which simply has no enforcement mechanism.
with regard to ba bamachteret, there are 2 actions - breaking in and stealing. the forfeiture of life that comes with breaking in makes us focus on that and ignore the theft. we ignore the second crime itself. stated differently, the context of machteret relegates the theft to trivial status. that's what 'be-damim knenhu' means.
in that case, there's no chiyuv latzet yedei shamayim even because no debt was ever accrued (and again, chiyuv latzet isn't equivalent to 'moral obligation').
rava might agree to this in principle - r' yonah ad loc wonders whether rava's chiyuv to repay is only derabanan or de-orayta.
ADDeRabbi - the Ktzos does not take this approach, but I like it alot! Very creative and indeed, very lomdish.
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