Wednesday, November 18, 2009

the penalty of kofer

The value of a person can be pledged to the Mikdash (e.g. dmei ploni alay) and calculated based on the price a person would fetch on the slave market. The Mishna (Archin 20a) tells us that if the person who is the object of the pledge dies, the pledge cannot be redeemed because a person's worth as a servant cannot be calculated after death.

This halacha seem to contradict another din. If a shor mu'ad kills a person the owner must pay a penalty, kofer. There is a machlokes whether kofer is calculated based on the value of the mazik, the owner of the ox, or based on the value of the nizak, the person killed. If we can assess the value of the nizak after death for purposes of kofer, why can we not assess the value of a person for purposes of redeeming a pledge to the Mikdash?

Tosfos answers that in the case of kofer there is a special gezeiras hakasuv that allows and demands that an assessment of value be made. Rashi suggests a logical distinction between the cases. In the case of an ox which gores the owner becomes liable the instant the damage is done; the assessment is just a means of determining how much to pay. In the case of a pledge, the assessment itself creates the obligation to pay; it is not just a means of determining how much cost is involved.

Why does Tosfos resort to saying this is a gezeiras hakasuv instead of accepting Rashi’s logical distinction? Perhaps Tosfos holds that the obligation of kofer is not a natural result of the crime, but must exists only after the court assess the damage (the value of the nizak) and imposes its penalty.

8 comments:

  1. great unknown6:30 PM

    Modeh biKnas - the psak din creates the obligation.

    ReplyDelete
  2. Anonymous1:07 AM

    "the pledge cannot be redeemed because a person's worth as a servant cannot be calculated after death."

    Servants need to be alive in order to serve, there is no market value for a dead slave.
    The value of a person for purposes of the mikdash pledge is determined primarily on the market value of the individual as a slave, the damage value for kofer is based on the value of the individual, whether he is a judge,bartender or slave (in addition to ox owner or guy killed....)

    Once a person is no longer with us,I'm not sure that its possible for him to function as a slave.
    So it would not be possible to determine the actual worth after death based on the slave market value, a fickle market that does not value servants that are not alive.

    So not only does the "assessment create the obligation to pay" as per Rashi,.... but i think that the assessment is not possible for the mikdash pledge cuz servants cannot serve when dead...
    But death does not change the inherent value of a person.

    Not sure how the value of a person is determined before or after death...

    jaded topaz

    ReplyDelete
  3. Anonymous1:52 AM

    Is the "servitude" factor used to determine the value of a person for purposes of the mikdash pledge, loosely based on the basis that the inherent worth of the person to the "mikdash" would probably be determined by the potential for services performed for the "mikdash".

    What kind of "slave market" is the mishna referring to.


    jaded topaz

    ReplyDelete
  4. What's your proof from modeh b'knas? Maybe the gezeiras hakasuv just allows you off with a hoda'ah so long as it occurs before psak.

    ReplyDelete
  5. Mike S.6:15 AM

    Is kofer k'nas or mammon? IIRC it is the latter, and the reason we don't assess it in Galus is because it is uncommon, not because it isn't mammon.

    If you want a good discussion of various forms of obligation, and which ones are created by a p'sak beit din, in contrast to those that are preexisting obligations clarified and enforced by the psak beit din, I recommend the first several shiurim in R. Yonason Sacks' treatment of Sanhedrin on the yutorah web site.

    ReplyDelete
  6. B'pashtus whether kofer is mamon or not depends on whether kufra kapara or kufra mamona - B"K 40.

    Technically there are 2 overlapping chiyuvim: a chiyuv to pay kofer as a penalty, and a chiyuv to make restitution (chiyuv damim) for killing a person (Tos 43a d"h mai lav).

    ReplyDelete
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