I think I am losing everyone with this topic, so let me finish it off. Ritva asked: according to Rashi that a lav hanitak l’aseh is violated up front but punishment is pushed off until the aseh is negated, why do we apply kim lei b’derabbah minei to the moment the aseh is violated? The lav causing malkos, not the aseh, should have to be simultaneous with the chiyuv misah to exempt the doer from malkos?
R’ Shimon Shkop (Sha’arei Yosher 1:3) draws the inevitable conclusion – according to Rashi, kim lei b’derabbah minei does not require that issurim be simultaneous, it requires that the trigger of two punishments be simultaneous. Since without fulfilling the condition of the anusa being eliminated and killed (in the case discussed in the previous post) there is no punishment for divorce, it is meeting that condition simultaneous with the act of murder which effects klb”m.
This helps answer the Rambam (see previous post) as well. Once a cow is borrowed, the borrower is liable to return or replace the cow from that moment, which is why even if the borrower dies, his estate is liable. If so, why is a borrower who slaughters a cow on Shabbos exempt from payment because kam lei b’derabbah minei – the obligation for repayment occurrs when he borrowed the animal, not simultaneous with Shabbos? The answer is (see Ktzos 341) that when it comes to klb”m we don’t look at when the potential obligation of repayment occurred, we look at when the actual obligation of repayment is triggered. It is as if the obligation to pay exists on condition (tnai)– the lien is in effect from the moment the obligation is set, but klb”m applies to themoment the condition effecting payment is fulfilled.
For more on klb”m and tnai, see the Divrei Yechezkel who has a nice roundup of sources. These type topics are very hard to break into bite-size chunks and render into English. Sorry if the ride was a bit rought.
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Offhand this answer doesn't sit right with me. If I get a chance I'll look into the sources you brought. I know that when it comes to dinim of genaivah there are good sources to say that a maaseh tevicha can be counted as a maaseh genaivah and I think that's what the Rambam is getting at when he says derech genaivah. If I do get a chance to look into it and I have arguments against your answer I'll post it up on my site.
ReplyDeleteOffhand this answer doesn't sit right with me. If I get a chance I'll look into the sources you brought. I know that when it comes to dinim of genaivah there are good sources to say that a maaseh tevicha can be counted as a maaseh genaivah and I think that's what the Rambam is getting at when he says derech genaivah. If I do get a chance to look into it and I have arguments against your answer I'll post it up on my site.
ReplyDeleteR' Baruch Ber says your sevara somewhere, but the problem is what's good for the goose is good for the gander - so when the yorshim kill the cow that is the moment of gneiva. How do you explain why the property of the father is liable for their ma'aseh gneiva?
ReplyDeleteSee the Ktzos in 341 (I think that's where it is) who raises a similar problem with the KS"M's answer.
You are right and I think you have to say that the word patur by the kim leh case in the Rambam was only going on the daled veheh and you are patur on daled vheh because the genaivah is nullified by kim leih. However, the Rambam would agree that the original borrowing is mechayev the keren. The lechem mishna suggests such a reading of the rambam
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