Thursday, July 17, 2008

why is there a din of bitul chameitz but no din of bitul by bor in reshus harabim?

ר אלעזר שני דברים אינן ברשותו של אדם ועשאן הכתוב כאילו ברשותו ואלו הן בור ברשות הרבים וחמץ משש שעות ולמעלה

Pesachim (6b): There are two items which are not owned by a person but which the Torah nonetheless holds a person responsible for: chameitz on Pesach and a pit dug in a reshus harabim.

Ran explains that the din of bitul chamietz stems from this statement of R' Elazar. Since technically chameitz is not yours, a minimal declaration (actually, even a verbal declaration is not necessary; a mental decision suffices according to Ran) of bitul is sufficient to offset the liability of bal yera'eh.

In other words (as many achronim explain), bitul is an act of siluk - it prevents the onset of ownerhip imposed by the special gezeiras hakasuv of chameitz. Bitul is not really the same as hefker, which is the removal of ownership which is already established.

So why is there no parallel din of bitul habor (or whatever you would call it) that would allow a person to avoid being chayav for digging a pit? Why can you not simply declare yourself immune from assuming the onset of responsibility for the bor?

20 comments:

  1. don't understand the comparison,by bor,when you dig a hole on a public domain,and someone injures himself,you are resposible not because that bor is yours,but because you caused the damage to be done,but it has absolutely nothing to do with the ownership of the bor,whereupon by chametz it is only your ownership [besides the fact that issur hanaeh is not considered yours]that causes the issur,therefore if you are mafkir it,it is not yours,and just like there is no issur with someone else's or a gentiles chametz,there is no issur with a chametz from hefkar
    chaim schonbrun

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  2. >>>are resposible not because that bor is yours,

    'As'o hakasuv k'ilu b'reshuiso' indicates that you are chayav because the bor is yours, otherwise how do you explain this line in the gemara? By your reasoning even if it is not yours you are chayav anyway for the act of having dug the pit.

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  3. anon18:46 AM

    Could that explain why we need pesukim and derashos to teach us the din of bitul? If it were just a siluk, we should know that it works mesevara -- but Rashi quotes onekelos as explaining tashbisu as tevatlun -- i.e., the Torah teaches us the din of bitul. Likewise the Ran quotes from the Sifrei -- velo yeraeh lecha -- batel belibcha. There is no similar makor by bor that teaches us the din of bitul/siluk.

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  4. The Ran implies that a sevara is involved - davka because chameitz is not technically yours to begin with can there be a din of bitul. M'mah nafshach: if bitul is sevara based, then shouldn't the same logic apply to bor? But if it is based on a gezeiras hakasuv (as you suggest), then the gezeiras hakasuv without R' Elazar's din or any sevara should be a sufficient explanation?

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  5. I think we are approaching this from the wrong angle. Even the Ran and those in that mehalech (Rashi, Ramban and others) agree that even if bitul is less than hefker (i.e. siluk), actual hefker would work (as Tosfos holds bitul is just hefker). The point is by bal yeraeh the whole point is not to own. So the Torah allows bitul to remove it from your possession even though bechol haTorah kulah bitul would not work if you actually owned it. But by bor, the point is not the ownership per se -- if you were actually mafkir the bor in a manner of hefker that would work bechol haTorah, you'd sitll be chayav.

    Perhaps then this is chiluk: whereas by chomeitz, you originally own it, the issur hanaah then removes the baalus but then the Torah returns it to you for purposes of being over on bal yeraeh -- for purposes of returning to you, the Torah allows bitul to help to be mesalke yourself. With a bor, you never owned in the first place and even after the Torah gives you a limited baalus of it, you still dont own it (I would think you could not sell the bor to someone else, as opposed to chomeitz which can be sold). So given that you dont own it but the Torah treats it as if you own it, there is no mechanism to be mesalek yourself from it. Although the gemara lumps the two together, the mechanics of the two are not identical.

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  6. I was thinking of the same approach. Chakira by "as'o b'reshuso" is whether the Torah is mechadesh ba'alus, or even though there is no ba'alus there is a chiyuv bor or chamietz as if there was. Maybe (as you wrote) the former is true by chameitz, the later by bor, and hence the difference.
    very briskerish. I would like to understand the answer of the Sha'arei Yosher end of 5:23, but my brain is stuck on this Brisker approach and I don't think it is what R' Shimon is driving at. maybe someone else will suggest an answer that will help my brain absorb R' Shimon's approach...

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  7. By "by bor" you mean to say "with respect to bor," or "in connection with bor" or, even more simply, "for a bor." Or when "talking in learning" should we forget all about correct English usage?

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  8. Anonymous4:22 PM

    Girls will never understand Yeshivish Talk!!!!(;

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  9. Yeshivish English uses Yiddish syntax. Nothing wrong with that-- it's just a mark of the chain of rabe'im reaching back to the time that Yiddish was the language of Torah. Even in Israel, the blacker yeshivah bachurim, even the Israelis, all talk either in Yiddish or in Ashkenazi Hebrew, although they wouldn't dream of talking like that outside the beis medrash.

    And I'll tell you the truth, if there was no organic reason for Yeshivish jargon to be different, it would be worth it to make one up. Every field has its language and cadence and syntax.

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  10. In fact, that's one of the reasons other yeshivos look askance at the YU olom. Their insistance on talking in learning in the same manner in which they discuss Hegel or economics grates upon the ear.

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  11. Anonymous1:20 AM

    It has always been the Minhag of the Jews to acctualy do this, Case and Point:Ladino,Jewish Arabic and LAst but not Least Yiddish the Yeshvish English is Just another Memeber of this subset I agree with Barzilai why should the doctors have their slang and the "Learning Guys" not? Also Speaking of the YU chevra I just Heard an amazing SHiur from Yu torah for The fast and Tishabav and All the three weeks Its amazing I belive Everyone Should Hear it HEre is the Link
    http://www.yutorah.org/showShiur.cfm/718902/Rabbi_Yaakov_Feit/Seeing_Light_Beyond_the_Darkness:_The_Legacy_of_Rebbe_Akiva

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  12. Anonymous2:55 AM

    P>S>A
    Fast Begins / התחלת הצום
    at 4:00 AM (Dawn - Degrees)
    or 4:30 AM (Dawn - Fixed min.)
    Eating of a settled character - אכילת קבע - is not permitted
    during the half hour immediately preceding dawn.

    Fast Ends / סיום הצום
    at 8:57 PM (R' Tukaccinsky)
    or 9:01 PM (R' Moshe Feinstein)
    Some wait until the time for מוצאי שבת - at 9:10 PM

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  13. to anon1, I just have to say that an ad hominem attack does not bolster your argument.
    Barzilai, your argument could also be used to make a case for ebonics or BEV -- that's black English Vernacular. However, the author of this blog usually prides himself on use of good English, and he would not be a fan of ebonics.

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  14. Ariella,

    huh? where is the ad hominem attack (or actually any attack for that matter)? I have two comments up on this thread and both (I think) were 100% on topic discussing the question in lomdus that Chaim posed.

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  15. I think Ariella confused "anonymous" with "anon1". Sometimes it is confusing when multiple people are anonymous. The comment in question was this one -

    Girls will never understand Yeshivish Talk!!!!(;

    The author of this blog has been swamped with work and barely has time to write anything, therefore he begs forgiveness for the occasional lapse into writing in the shortest understandable way to convey a point.

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  16. anon12:18 PM

    Got it. Thanks for the clarification.

    We'll wait until (and look forward to when) you can can get back to writing.

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  17. Barzilai5:59 PM

    One difference between ebonics and Yeshivish is that the latter stems from, and celebrates, an ancient and ongoing tradition of scholarship and refinement, while... vedai le'chakima birmiza.

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  18. Anonymous1:30 AM

    LOL(;

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  19. Anonymous1:32 AM

    Ariella,how do you adress Anonymous argument about Ladino and the like?

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  20. Tal Benschar9:01 PM

    IF not too late, here is a non-lomdish answer.

    The purpose of the two halakhos is completely different. For chometz, the Torah wishes Jews to rid themselves of Chometz. That is the mitzvah of tashbisu. So while the Torah made the Chometz as though it was in the person's reshus, that was for the purpose of encouraging him to rid himself of the Chometz (otherwise he would violate bal yiraeh, and maybe even be chayyav malkos.) In that case, a simply act of bittul accomplishes the very purpose of the Torah.

    Not so bor. The purpose is to make the person responsible to pay for the damages caused by the bor. The end-result we are seeking is responsibility, not separation. Allowing the person to be mevatel his quasi-ownership in the bor does not fulfill the purpose of the Torah in any way -- to the contrary. That is why it works.

    Not very lomdish, I admit, but perhaps there is food for thought.

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