Monday, June 16, 2008

does modeh b'knas have a moral obligation to pay anyway?

Interesting question raised by the Yerushalmi at the end of the third perek of Kesubos (and I don't think there is a parallel in the Bavli): in a case of modeh b'knas, where the guilty party is exempt from being fined by Beis Din because he/she admits to the crime committed, is there any moral obligation (chiyuv la'tzeis y'dei shamayim) for the guilty party to voluntarily pay the fine in question? Apparently the Yerushalmi is willing to entertain the possibility that knas is not just a function of Beis Din imposing a penalty, but is an inherent obligation created by the criminal act itself.

5 comments:

  1. I believe that in the law of the land, one gets a lighter sentence for confessing one's guilt than for being found guilty despite pleading not guilty. From Torah law perspective, perhaps the penance is paid, in effect, through the confession obviating the need for an additional fine.

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  2. How do you explain the opposite tzad - why would you think you have any obligation to pay if the court has declared you exempt?
    B'shlama by regular mamonos, it is the act of being a mazik which generates the obligation to pay. The court just processes the facts, but the event of nezek itself is the cause of culpability. If the court declares you innocent but you know you are really guilty, the court cannot change reality - you should still pay up.
    The obligation of knas is not generated by the facts of the case alone. A fine is not a moral obligation, but is a penalty generated by the courts. If they say there is no obligation to pay, why cough up the money?
    See R' Akiva Eiger to Makkos 5.

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  3. Mike S.2:17 PM

    It has been a while since I learned this, so the ma'are mekomot are not at my fingertips, but I am almost certain that the halacha is that there is not hitchaivut af l'dei shamayim. This is related to to the question of why it requires a beit din of mumchim to judge k'nasot, and why we cannot claim the authority of "shlichusaihu" even for knasot that are common. Fundamentally, the role of the beit din is not merely to judge the facts of the case (birur davar) but to establish the obligation ("kiyum davar".) In other words, it is not the action of the choteh that generates the liability for the k'nas, but the p'sak of the beit din. As opposed to a loan, where the borrowing creates the obligation and the p'sak of the beit din merely enforces an existing obligation.

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  4. Mike S.: agree with you 100%, which is precisely why the Y-lmi caught my eye - it does not fit the pattern that all the other mareh mekomos suggest.

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  5. Anonymous3:09 PM

    See Gemora in Baba Kama 75a and Rashba there... click here for summary http://www.dafyomi.co.il/bkama/insites/bk-dt-075.htm

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